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LEGAL BASICS FOR SONGWRITERS

Part One: The Poor Man's Copyright

I have been a frequent speaker at songwriting festivals and conferences over the years, and there has never been such an occasion where I haven't been asked about the "poor man's copyright." It seems that at some point in recent history, some poor genius decided to avoid the high cost of copyright registration, and sought out other means to protect his work. Rather than pay the Library of Congress to register the copyright in his work, this starving artist hatched a brilliant idea: he mailed himself a copy of his song, with the belief that the U.S.P.S. cancellation date would serve as a substitute for copyright registration. Somehow, this plan trickled down to the masses, and now billions of songwriters (and novelists, and photographers, etc.) are buying up padded envelopes and postage, and going to sleep at night feeling secure that their work is protected. Unfortunately, the only benefit of the poor man's copyright is a surprise in your mailbox when you are feeling lonely and would like to receive a letter.

You should be aware that you own the copyright in your work the moment you fix it in a tangible form, such as writing down lyrics, or singing your song into a tape recorder. YOU DO NOT HAVE TO REGISTER THE SONG TO CLAIM OWNERSHIP OF ITS COPYRIGHT. You do, however, have to register the song with the Library of Congress in order to protect that ownership, just like you have to register a deed to real estate.

The poor man's method of mailing yourself a copy of your song does not afford you adequate protection from copyright infringement litigation. If you believe your work has been infringed, you can only file a lawsuit under the Copyright Act in federal court if you have registered your copyright with the Library of Congress. Likewise, your defense against a lawsuit claiming that your work infringes on another will not likely prevail unless you have registered your work.

Many people are not convinced by my dismissal of the poor man's method of copyright registration. Surely, a sealed envelope with a postmark on it is undeniable proof that you created a song before a certain date, right? WRONG! The poor man's copyright

has been struck down by the U.S. Federal Courts, largely due to the ease in which this information can be manipulated. For example, if you mailed yourself an empty, unsealed envelope five years ago, but now you find yourself in need of evidence in an infringement action, what's to stop you from stuffing that old envelope with a song you wrote more recently? The postmark date just isn't probative of anything. It's a waste of time, and it gives you a dangerous and false sense of security.

But you are a starving artist, and you cannot afford the registration fee for a copyright. So what do you do? There are ways around this. First of all, while it is always best to register your copyright as soon as your song is fixed, for all practical purposes, many songs being pitched in Nashville are not actually registered until the song is scheduled to be cut.  This is based upon practicality.  I do recommend you register your songs before they are pitched, but you can do this far more economically than you think. The Copyright Office accepts what are called "compilation" registrations.  You can register multiple songs with one application. You just call it "The Collected Works of (your name here), volume 1" or volume 2, etc. In the "alternate title" section of the copyright form, you list the individual songs that are covered by the compilation registration. Easy!

In the meantime, keep good records. If you are organized, and routinely follow the same procedures with every song you write, you can create convincing evidence with your own filing cabinet. Make notes of the dates you worked on the song, the rewrites, etc.  Keep all your notes and your work tapes of the writing process. If you have played the songs for anyone, or pitched the songs, make notes of who, what , where and when.

And lastly, don't panic!  Conscious infringement doesn't happen as often as you may think. Hit writers don't typically go trawling for material. You're better off focusing your energy on writing that next great song!

(c) Elizabeth Marlowe