Copyrights, Trademarks and Patents



No legal advise is intended or implied. When in doubt consult with an attorney who works in the field of intellectual property rights.

Collectively termed "intellectual property" by the legal profession, Patents deal with the protection of processes (such as MP3 data compression or the Morley Electrostatic Delay for musical instruments), Trade and Service Marks deal with protection of brand name and icon association with a given person or firm (such as the name Fender, the term "Mini Disk" or the use of the name "Heart" in connection with a musical act) and Copyrights deal with fixed ideas and concepts that are communicated by tangible medium (books, music, films, dance routines, stage shows and audio recordings). Of these, Patents and Copyrights endure for a short, fixed period of time (about 20 years for a Patent and 100 years for a Copyright) while Trade Marks endure over the useful life of the product or service so long as you pay the regular renew fees to keep the mark active (so Coca Cola will be associate with that specific soft drink so long as the company pays the renewal fees).

When a Patent or Copyright expires (they can't be renewed indefinitely) the process, writing, sound or image falls into the "public domain" and anyone can use the work. For example, if you own a copy of the original issue of Charlie Chaplin's silent motion picture comedy classic "The Gold Rush" you can make copies of that film and sell them legally or show it on television. You cannot, however, copy and sell the re-issue that features a new, original musical score written by Chaplin, as that score is still in copyright and will stay in copyright until around the year 2030. For years anyone who wanted to make a color television set had to buy the picture tube from RCA because they owned the Patent on the tube and never granted license to any other company which allowed them to make their own tube. In 1970 when the RCA Patents expired Sony began making the Trinitron tube and made considerable differences in the structure of this tube, even though based on the original RCA Patents. Sony then got a design Patent for their new modifications (they used squares instead of dots and arranged these in slight different manner from the RCA dots). Now Sony had exclusive rights to a picture tube with square picture elements (which are used today almost exclusively instead of the older RCA dot method).

It's the same with music. An old recording of some jazz or blues artist who is now dead, is legally to copy and use, because sound recordings could not be copyrighted until around 1980, however the performer has some personal rights under some circumstances and you may have to pay a "new use" fee to them if they are alive. You will also have to pay the songwriter's a fee if it was written after 1921, as the tune is still in copyright (the cost for this license is 8 cents per copy of a recording per song).

The Copyright is the most important of the intellectual property laws to the performer and songwriter as this is what protects their created materials -- everything from posters, logo artwork, pictures and songs right up to the audio recording that are made.

Copyrights do not exist in every country, hence those countries without copyrights are often the home of mass bootleggers who can duplicate Star Wars legally. There's very little one can do about these loop hole areas of the world, but understand that most of the other major countries in the world are all a party to various treaties or "conventions" in which mutual recognition and protection is extended to the creates made by the various people who live in those countries accepting these agreements. The most important of which is the Berne Convention. The Berne Convention holds that protection for creations of a communications nature are extended for the lifetime of a real person plus 100 years after the death of the last living author when more than one person is involved in the creation of the work. Producers, performers and all song writers can count for a sound recording, however a lot of commercial records are put out by companies and sometimes restrictions of a maximum duration of 100 years applies to these "corporate" works. Ultimately one clause of the Berne Convention stands out to explain all limitations and exceptions: The people filing the copyright must comply with the laws of their country of citizenship.

Individual country laws vary widely. In the UK, for example, there is no formal process for copyright so a copyright is automatic in that country and endures for the lifetime of the creators, plus 100 years. There are no forms to fill out and posting of a copyright notices is not even required.

In the United States a statutory copyright that endures forever applies the moment a work is created, but only under the so-called "states rights" and none of the states have formal copyright laws, so your protection comes from standard rules of Tort law (injury to person or property -- a civil lawsuit between you and the offender). To obtain protection and other manditory remedies under the United States Copyright law, you must give up the statutory right in exchange for a period of lifetime of the author plus 100 years or 100 years maximum for corporations. You must also file a form with the Copyright office at the Library of Congress, pay a nominal fee (currently $30) and provide one copy of the created work for an unpublished copyright or two copies for a published copyright. Demo tapes are generally considered unpublished, as are television broadcasts.

Publication only occurs when you make copies of the work and sell or give them to the public at large. To this end the case of Star Trek is one I've always found interesting. The original TV show was made under the old copyright laws, which stated that you lost your copyrights if you failed to post a notice (this rule no longer applies) and at that time the copyright only lasted 56 years. In the first year of Star Trek they didn't post a copyright notice or file a copy with the Copyright Office. They also produced 16mm prints for exhibitions at science fiction festivals, which were eventually bootlegged, copied and sold -- which was legal as there was no copyright notice on the films. In theory Star Trek year one had lost all copyrights. In 1979 Paramount, who now owned Star Trek, started selling video tapes and applied for a copyright, posting a new notice. They claimed the show was never published but only syndicated and thus was protected under the statutory or unpublished copyright mechanisms. The Copyright Office went for this and shows originally broadcast in 1965 now have 1979 and 1980 copyright notices and are protected for 100 years under the new law.

So this helps to clarify the distinction between distributed demo copies to managers, booking agents and publishers for consideration of publication or representation as opposed to making your demos available to the public are large by giving away random copies or anyone or selling them. The moment you begin wide distribution of a finished product it can be considered publication (and you then have 90 days to provide a free copy to the Library of Congress or face a fine).




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It should also be noted that a worked it not cemented into final form until it is formally published and after that the owner or controller of all rights may allowed changes to occur. An example of this is the 12th Street Rag case, the subject of a classic Jackie Gleason Honeymooner's episode. One person wrote the music another lyrics. The publisher like the music but not the lyrics. The publisher bought the rights to the music without the lyrics and then had new lyrics written by someone else. The writer of the original lyrics sued and lost. Why? First they were free to still sell their lyrics or put them to other music so they lost no value. Second, a work is not cemented in time until it is formally published and made available to the public. The logic behind this is that the author may continue to freely edit and refine the work prior to publication. After publication the owner has the right to bring in another lyricist (who now gets half the money). The logic again is the original song had lyrics written by another person, so the music writer didn't face any new loss in the addition of a stranger with lyrics brought in by the publisher. The publisher can also fuse the work into a stage play or movie.

The owner of the copyright enjoys all rights until they make first use of the creation, sell or license use. This means if you write a song no one else can record it or use it publicly without your express permission. One you grant permission to use it publicly anyone else can apply for a compulsory license to use the song by paying about 8 cents per recording (and this is part of why everyone is going after Napster, they aren't paying these license fees to the creators of songs).

The only exceptions to this rule states that those who sell CDs and cassettes, for example can display and play the CD without payment of any fees or special licenses. It is technically illegal for anyone to play any copyrighted song on a guitar or piano in public, even if no fee or money is charged. You can't legally play "Been A While" by Staind on acoustic guitar at the park without licensing the work from the owners of the copyright, however that is rarely enforced. They do, however, enforce the playing if this -- or any other song -- at bars, night clubs, hotels, restaurants and theaters in the United States. Representatives of songwriters (ASCAP and BMI in this country) regularly go to large clubs in major cities and if they hear any songs in their catalogs being played the insist the club or hotel buy a license (the fee is around $2,000 today) or cease playing their songs. Some clubs refuse to pay for this license and ban all ASCAP and BMI songs. For a long time Doug Weston's Troubadour had this policy in which bands couldn't play Led Zeppelin cover tunes and instead of playing albums between shows the Troubadour played band demo tapes!

Your neighborhood bar probably doesn't have a license from either ASCAP or BMI, nor may they ever be caught, but if you are playing top 40 cover tunes at such a bar and a representative does walk in they can shut you down, forcing the owner to pay a license fee or remain silent (repeated violations result in lawsuits -- ASCAP and BMI both have many pending against clubs and hotels all the time).

This clarifies another point, there is no copyright police force. The owner of a copyright is still required to, at their own expense, institute court cases for copyright violations. If evidence of a severe offense is brought to the attention of the FBI they may police the law, but this means some bootlegger doing mass reproduction of Star Wars videos and Madonna CDs. To start a copyright law suit you must have a valid copyright registration number and pay about $200 to file the papers. Attorney fees start at around $2,000 so you need a budget to enforce your rights. Also there are some large loopholes in the copyright law, the biggest of which is "innocent infringement." This means you have to prove the person violating your copyright knew they were breaking the law and doing this action with willful intent, most lawyers agree this is not easy to prove. You need witnesses and audio recordings of the violators openly admitting they are criminals and few people will brag about that! One factor in defeating the "innocent infringement" clause is posting that copyright notice clearly on the work.

A valid copyright notice are: Copyright 2002 Earl R. Dingman or Copr. 2002 E. Dingman or 2002 E. Dingman. Initials are allowed if there is no room to print a full name ( 2002 E.R.D.). The less defined the notice the easier it is to claim innoncent infringement ("Gee, I thought '02 mean 1902 not 2002..."). The use of parenthesis is NOT legal, thus (c) 2002 is not a valid copyright notice! The "c" must be enclosed in a full circle ( ). For sound recordings you must enclose a "P" inside a full circle for extra protection under the Sound Recording treaty of the 1960s. To obtain damage money in Mexico you must add the phrase "Rights Reserved" or "All Rights Reserved" or the initials D.R. or the phrase Derechoes Reservados.

Aside from damages allowed under the copyright law, you are still free to file common Tort damages in state or Federal court, which have different rules and even allow a jury trial which can decide if money damages are to be awarded. There was a case in which a T-shit maker used original artwork created for them, with two mice that looked like the starts of the television show Miami Vice. The T-shirts were terms: Miami Mice. The producers sued for violations of copyright, name, likeness, exploitation of their product and trademark violations -- they won in court and get damages.

Songwriter's and publisher have created various organizations to license and administrate their works. Each country in the world has their own "public performance rights" organization which license music for television, radio, bars, pubs and theaters. In the UK this organization is known as PRS in the U.S. we have two competing organizations, ASCAP and BMI. These organizations have rules for affiliation and some may charge fees. ASCAP, for example, charges $10 per year for active songwriters and $50 for active publishers. BMI charges nothing for songwriters and a one-time $75 fee for publishers. ASCAP requires you have published sheet music or commercial sound recording disks (CDs or vinyl) to affiliate, BMI requires that it is "likely you will be played on BMI media" to affiliate. ASCAP is owned by songwriters and publishers, BMI is owned by radio and television stations. There are also other clearing houses such as the Harry Fox Agency in New York, which licenses movies and phonodisks. All of these rights organizations also distribute monies from the sale of blank cassette tape to those receiving royalties from radio performance. These orgnaizations monitor radio and television and pay a royality to each songwriter and publisher for logged airplay. This amounts to as little as a few dollars for one play on a small station to as much as $2,000 for one network television airing in primetime. Paul Anka, who wrote the theme song for The Tonight Show Starring Johnny Carson once remarked that he put all of his kids through college on the royalties from that one song! A song such as this can easily earn $500 per day, 5 days a week, 52 weeks a year!

Aside from copyrights there are also property rights. You can't, for example, borrow someone's public domain print of Chaplin's "The Gold Rush" and rent it to television for fee. While there are no copyright violations you have made money off the property of someone else without their permission. They can sue you for damages to their property rights, even though no contract or limitation was specified.

Also public figures have a right to exploitation of their name and likeness. In a recent case a man commissioned a drawing of the Three Stooges made from a photograph. He put this drawing on T-shits, the families of the Stooges sued and won. You can't exploit name and likeness for commercial profit, unless there is considerably new, unique and original artist additions made to the work (Andy Warhol once added color to pictures of people and used those commercialy with no problem, because of the new art added to his pictures). This doesn't apply to news media, it only applies to those out to make buck. So if someone snaps a picture of Madonna or Britney Spears in public, they can publish this in a magazine (and get paid for use of the picture) but they can't make a poster out of this picture and sell it to the public -- at least not in California which has a specific law covering the commercial rights of public personalities.

You can't copyright titles or short phrases. That's the domain of Trade and Service marks, which are terribly expensive ($500 for a U.S. mark and individual states allow protection at a lower fee within their own border, typically around $30 to $50) and must be renewed every 10 years with a new fee. You must be able to establish you've been use the logo, phrase or name in connection with a service or product. You must also provide no one else is using a similar one before your use or obtain permission.

Apple is a registered trade mark of the Beatles and their holding company for a musical record label that dates back to 1966 and the Sgt. Pepper album and later the White Album. When Apple Computers came along in the 1970s they obtained consent to use the name so long as they did not use it in connect with music, therefore Apple got to register a similar name with a different connotation (and recently the Beatles threaten to sue Apple Computers when they began make computers that recorded music, stating it was a violation of their agreement for usage of the name).

Many bands and performing acts are taking out applications for Trade and Service Marks. The fee for this varies from about $20 for a state by state applications to $500 in some countries. You must renew the application ever few years. Once granted only the owner of the mark may use the name or logo in connection with specific goods or services.

It is illegal to identify any logo, title or phrase with the circle-R symbol unless you have a valid, paid, U.S. trademark registration. Anyone can, however use the TM or SM initials even without any actual registration.

Our Music Special continues with these other articles:
Learning Music | Promo Pictures | Booking Agents| Managers | Producers | Pressing CDs
Record Companies | Copyrights | Recording Software | Sound Cards | Guitar and Bass
Multi-Track Recorders | Live Sound Gear | Microphones | Recording Engineer | Bands in Texas
Teen Band: Y@nK | Gigs and Clubs | Music Theory | Radio Airplay

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