By John Pellegrini
Over the past years I’ve done a few articles on Copyright laws and how they affect radio stations, particularly in the areas where radio stations may be in violation of those laws and what ‘fair usage’ really means.
But there’s another side to copyright laws that I’m now becoming more aware of, and it occurs to me that I may not be the only one who would benefit from knowing this information. That’s the area of being a copyright owner.
Quick disclaimer: I am still not a lawyer. Everything I know is the result of research, which I will detail to you shortly and you can look up on your own.
As some of you may know, I’ve done some sound effect recordings, which I sell online. In order to protect my work, I took out a copyright on them. Additionally, I’ve begun writing fictional stories that are being used and considered, and I’ve taken out copyrights on those works.
I’ve found that, just like with copyright infringement, there is a lot of incorrect information out there that people consider to be valid. And just like with the copyright infringement misinformation, you’ll have a lot of problems if you’re believing the ‘common knowledge’ and not doing actual research.
The first thing you should know is any questions you have on anything regarding copyright laws can be answered for free by the U.S. Copyright Office. No kidding, they have a website: http://copyright.gov/index.html that has a handy FAQ section, a lot of documents that are not terribly hard to read (not reams of legal-speak), and they will even answer your questions through email or by phone (toll free call) if you can’t find the info you’re looking for.
Now let’s get into the area of copyright that you should understand if you want to protect something. There are a lot of misconceptions, especially when it comes to the concept of the ‘poor man’s copyright’. You know the idea, right? You’ve written or produced something, and rather than obtain an official copyright on it, you simply mail a copy of it to yourself and never open the envelope. The idea that the postmark on the envelope serves as a ‘date of authorship’. Or, with the advent of computers, everything you create is dated and that serves as your ‘copyright’.
Here’s what the Copyright Office says about that: “The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”
In practical terms this is what that means: Let’s say someone stole your work. Let’s say you decide you want to sue them for infringement. You go to a copyright lawyer. The first thing the lawyer will ask you is, “Do you have the copyright?” That means, do you have a registered copyright from the US Copyright Office? If you don’t you won’t get much help. Why?
The absolute truth: date/time stamps from computers or postage on envelopes are not admissible in court as valid proof of ownership. Period. Any lawyer that knows what they’re doing will not even talk to you if you don’t have your work registered. Virtually no court in the United States of America will consider hearing a suit of theft of ownership without the claimant having a valid registered Copyright. I would say ‘no exceptions’ but you never know with some lawyers and judges…
Nevertheless, here’s why only registered copyrights are valid:
Contrary to popular belief, computer hard drives and their time codes can be tampered with and altered. Don’t believe your IT guy or your local electronics store ‘expert’ - I know of some computer engineers (hackers) who have done it. It’s happened often enough to invalidate their authenticity as a legal proof of anything.
Postage stamps or postage cancellation marks can be forged. What a surprise, huh?
But a registered copyright from the U.S. Copyright Office is a Government Issued Legal Document and is not contestable. Understand the difference? This means that even if you forge a copyright document, all anyone has to do is contact the Copyright Office to see if it’s genuine. That’s the reason for the existence of the Copyright Office -- an irrefutable proof of ownership for legal business purposes, valid in all U.S. States and International Courts.
The copyright lawyer might still take your case (if they’re inexperienced or just want your money), but the greatest burden of proof is on you. The chances of you winning this case in court are minimal, provided you can find a court that will hear it. Therefore you will be expected to pay all the legal expenses out of your pocket up front, rather than the lawyer agreeing to work for a portion of the settlement, as in the case of most lawsuits.
Another misconception is you need to hire a lawyer to register for a copyright, and that it’s very expensive. Nope. You can do it yourself through the Copyright Office. The cost can be as little as $35.00 for a single work - and anywhere from $55.00 to $85.00 for a multiple work author or composer. When I registered my sound effects package, I used the standard application for $55.00. That had to be sent in on paper form, and I had to send a copy of the recordings on CD to the Copyright Office. There are also group registrations for multiple works - a sort of ‘blanket copyright’ - but you should really look through all the designations to see which works best for you. The only time you really need a copyright lawyer is when you want to take action over a theft of your work – and, again, you must have a legal copyright, or when you need to negotiate an ownership of a work… which I’ll get into shortly.
Possibly one of the biggest misconceptions is this one: you can copyright your name or a term, like a band name or group name. False. Business names, such as a band name or a production company name can be Trade Marked or Service Marked, depending on what kind of claim you want to preserve. That can be done through the U.S. Patent Office and you can get more information about how that works at their website: http://www.uspto.gov.
One other important factor to consider: it can take from three to six months (sometimes longer) to get your copyright granted, and it depends entirely on what you’re registering. My sound effects collection took four months for approval. Books, or recorded programs might take longer because someone has to actually read your book, or listen to your program, and determine if anyone ever wrote or recorded anything similar, and, if needed, determine how closely your work matches the registered work. By the way, no need to worry about the timeline; unless your copyright claim is refused outright, and you’ll get that notification pretty quickly, the rights are yours from the day you submit your work to the Copyright Office for validation.
Which brings me to a very important question: Are you the sole author and owner of the work you want to register? Or can someone else or some entity make a claim against it? Consider: I know of a morning show at a radio station that decided they wanted to trademark their show name and copyright everything they did on air, so that they could own their program if they wanted to move to another station or go into syndication. The station manager that they worked for found out about their plans and said that they were NOT the owners of their work. Their program and everything they did on air belonged to the station and the GM threatened to fire the air talent and sue them if they tried to copyright their show.
I also know of a production person many years ago who wanted to copyright some comedy bits he wrote, with the idea of starting a comedy service on the side. He received the same response from his station management as the morning show got from theirs: ‘We own your work, not you’. Does your contract or anything you signed when you started working for your station say anything about implied ownership of your talents, your name, your likeness, and/or ‘intellectual property’? If so, you may not be able to claim ownership of anything you create while working there.
This is the kind of situation where you will need a lawyer. Most media corporations claim exclusive ownership of all content that any employee creates while being compensated by that entity. Some even go so far as to claim ownership of everything you create regardless of whether you created it while on the job or at home. You’ll need to negotiate terms with your employer, and if the broadcasting entity you work for does not want to grant you the right to copyright your program, you may find yourself being sued if you try to go ahead. Have a copyright lawyer or an entertainment lawyer who specializes in copyright law look at all the documents you signed when you started working for the station, to see what you’re allowed to do.
Here’s the real problem: you cannot force a business or employer to give you the rights of ownership just because you created it. If they don’t want to give you the right of ownership, there is little you can do about it. So make sure whatever it is you want to copyright is completely your own and cannot be claimed by any other person or entity. That doesn’t mean you can’t negotiate (a.k.a. purchase) the rights of ownership - and, again, that’s where a lawyer really needs to be consulted.
By the way: consult with a lawyer who specializes in copyright law as it pertains to your particular field, and not any other kind of lawyer. That could be a Copyright Lawyer, an Entertainment Lawyer, or a Publishing Lawyer, depending on what you want to protect and where you work. Copyright law is a highly detailed specialty and most standard business lawyers have minimal knowledge, if that. I can remember some conversations I had with a couple of business lawyers while I was writing the copyright infringement articles for RAP (including a high-profile Chicago business lawyer) who were completely incorrect of what copyright law allowed and did not allow under ‘fair usage’. Consider it like asking a dentist or a cardiologist to do your brain surgery. The truth is, if you get in trouble for having the wrong legal information, it’s not your lawyer’s fault. Hint: it’s never the lawyer’s fault.