Songwriting Part 14 - Protecting Your Copyrights
How to Copyright Your Song
by Lorena Kelly
May 15, 2018 in Songwriting & Copyright
"Copyright is the body of law on which the distribution of cultural products depends."
Copyright protection is what allows us, as artists, to earn money. We have created something, and therefore we have the right to decide how we capitalize on that creation. Besides the practical aspects, such as determining who gets paid royalties for a song, copyright protects your integrity as an artist, by allowing you to determine how your material is presented to the public.
Disclaimer: Laws pertaining to copyright (in Canada) are ever-evolving, and this article is not a substitute for individual legal advice. Technology, especially in music applications, can develop so quickly that laws are always catching up. If you feel you need legal advance pertaining this subject, check out our Legal Program offering, or consult a lawyer.
What is copyright?
The right to copy: Only the owner (usually the songwriter) is allowed to reproduce or perform, or give permission to reproduce or perform, a work. This includes the sole right to publish, produce or reproduce, duplicate it for broadcast or sale, to perform in public, to communicate a work to the public by telecommunication, to translate a work, and in some cases, to rent the work.
Having this right gives you leverage to create income from your creation. Authors' (songwriters') "economic rights" generally allow creators to authorize - or prohibit - the use of their works. Why would you prohibit its use? You may not want your name or image associated with a particular association, political party or movement.
Moral rights relate to the integrity of a work - protecting an author's reputation. For example, you can prevent someone from altering your work in such a way that it would make you appear racist or of a different opinion than originally intended.
Copyright applies to all musical works in material form - words and music, music only, or lyrics only (lyrics without music are considered a literary work). It must be in a tangible format to be copyrighted - written down or recorded, otherwise it would be difficult to prove it exists. Copyright also applies to all kinds of recordings or mechanical contrivances. Audio works that are broadcast by radio, TV, cable TV, or any other means, without first being fixed, are not protected by copyright. This is important in the case of new media, especially when the author of a new work decides to broadcast the work without fixing it (i.e. live performance), and some other person takes the initiative of doing so. (- excerpted from the Department of Canada Justice)
There are three possible copyrights involved in a recording: copyright in the musical work, a separate copyright in the sound recording, and still another copyright in the performance itself (also called "neighbouring rights"). Copyright can exist in all three at the same time, and it is possible for each copyright to be owned by a different person/company. For example, a composer may own the copyright to the song, a record label might own the copyright to the sound recording of that song, and the singer (who performed on the recording) would own part of the copyright to the recorded performance.
When Do You Need to Copyright-Protect Your Songs?
When your songs are leaving the nest / receiving any type of exposure. There is probably no need to c-p your stuff if you never play it for anyone and never send or post it anywhere.
You may wish to formally C-P a song or set of songs for peace of mind before you:
- perform it live.
- send it off to publishers, agents, record companies, other artists, synchronization companies, and such.
- record and release it on an album.
- post it online in a casual manner (ie Facebook or YouTube live video).
How do I protect my copyright?
The good news is copyright in Canada and the U.S. is automatic upon creation. As soon as you finish a song (and write it down or record it), you own its copyright, and your rights are protected under the Copyright Act. (The song can also be referred to as your intellectual property.) Your copyright ownership continues until 50 years after you die (unless you assign your rights to someone else).
Additionally, in both Canada and the U.S., registration of your copyright is voluntary. However, it is common practice to register with the Canadian and/or U.S. copyright offices to give your copyright claim some backing, if it is ever questioned.
At the bare minimum, you should include identification of ownership on all published material by use of the © symbol with your name and the year. ie © Jane Doe 2018.
What if you run into a circumstance where you need to prove that you wrote a particular song? First, you need to prove that you were the one who came up with the original idea, and second, you need to prove on WHAT DATE you created this original idea.
For example, it's entirely possible that both you and a songwriter in the U.S. come up with an ideas for a melody that are very similar - completely by coincidence. Both your songs are commercially released and you notice the similarity. In order to prove that your copyright was infringed upon, you must prove intent and access (the songwriter in the U.S. somehow heard your idea, and intentionally "stole" it), and you would have to prove that you wrote your song BEFORE the other person did.
So even if someone releases a song extremely similar to one you've written, in order to bring a lawsuit against them, you must prove that they had access to your song. i.e. If your "Jake's Lullaby" has never been heard by anyone but your dog, there's no way Pink stole it from you. You can take some comfort in the knowledge that instances of an artist or label intentionally stealing a poor unknown songwriter's song are pretty rare.
However, it is still important to have evidence that establishes your ownership and the date of creation in the possible event of infringement. ie if someone releases "your" song but their copyright was registered 3 months earlier than yours, and you cannot prove that they had a way in which to hear your song previously, you would have no grounds for a copyright battle. If you wrote a song in 2014 but did not record and release it, nor register the copyright, it could be impossible to prove the date of creation should you encounter an infringement in 2019.
A note on International Protection: Canadian copyright ownership is recognized in other countries - as long as the country in question belongs to one of the international copyright treaties, conventions or organizations (the Berne Copyright Convention, the Universal Copyright Convention, the Rome Convention, and the World Trade Organization). Most countries in the world belong to one of these groups. Equally, copyright held by a foreign author is recognized in Canada.
To protect your copyright you could use these methods...
Always use: The Copyright Symbol ©
You are not required, under Canadian law, to mark your songs with a copyright notice ( © ). However, some countries do require this symbol in order for you to be protected. So be safe, and ALWAYS put a version of the copyright notice on your lyric sheets, CDs, and anything else that is a written or recorded version of something you wrote, including on the internet.For example: © 2018 Jane Doe (or Copyright Jane Doe 2018).
The names would include anyone who shares the copyright (your co-writers), and the first year the item was created.
This notice will serve to remind others that it's a copyrighted piece of work, and let them know who to contact if they want permission to use the work.
You don't have to register with anyone in order to use the copyright symbol.
Protecting your Recordings - In addition to a copyright notice pertaining to every song on an album, you must protect the copyright for the master recording itself. Use the symbol in the same format (P) 2001 Blazing Trail Records, with the names being the owner of the copyright in the sound recording (this is NOT necessarily the same as the songwriter - it may be the producer, or a record label); and the year is the year the publication (recording) was created.
The publication year of a recording is when copies have been made available to the public. The public performance of a song does not constitute "publication".
Additionally, if you own the copyright to an unpublished work you may place a notice on any copies that leave your control. (for example) Unpublished Work © 2018 Jane Doe
1) Government Registration
In Canada, you are not required to register your copyright with the government in order for it to be valid. But doing so can be helpful if you work is ever questioned, or infringed.
The federal agency responsible for registering copyright in Canada is the Copyright Office - part of the Canadian Intellectual Property Office (CIPO). Registration is official recognition of your copyright claim, and records the details (author, date of creation). The Office maintains records of copyright for public access.
Registering a piece of music does not prove that you actually wrote it. It means you are making a claim, but the Copyright Office doesn't actually verify the claim. The Copyright Office does not stop people from infringing on your copyright, either - that's up to you/your publisher. (If you file a lawsuit, the courts rule, and if infringement is found, the Copyright Act will determine the penalty.)
To register your copyright claim with the Copyright Office, you submit an application form and fee. The Office does not want a copy of your work, and it does not check if someone else has already registered a claim on the item. Each song, recording, etc. is a separate work, and would require a separate application and fee. For information visit www.ic.gc.ca.
Some authors prefer to use pseudonyms, or stage names. These names may be included on the application, but the author's legal name is also required in order to calculate the duration of rights (the author's lifetime).
Depending on your activities as a songwriter, you may wish to also register your material with the U.S. Copyright office. This registration would be required if you wished to bring a lawsuit for infringement of a U.S. work. There are fees involved to register. See Circular 1, Copyright Basics, section “Copyright Registration” https://www.copyright.gov/circs/circ01.pdf
2) The Canadian Song Vault, managed by the Songwriters' Association of Canada
The Canadian Copyright Office registers only the song title and a claim of ownership, which assists, but is not definitive in proving ownership of copyright. The Canadian Song Vault maintains a recording of the song and the song’s date of creation and filing. This information can be useful in the event of a legal dispute regarding copyright ownership. Registering with the Song Vault however is not the same as registering with the Copyright Office. More information: http://songwriters.ca/songvault.aspx .
Membership in SAC is required, as well as a fee to utilize the Song Vault.
3) The "Poor Man's Copyright"
A commonly used method to protect your copyright is to send hard copies of your work to yourself by registered mail. Put a recording, and/or lyric sheet and lead sheet of the song (make sure you write your copyright notice on these) in an envelope, write the name of the song(s) on the back of the envelope, and send it to yourself by registered mail. When you receive the package in the mail, don't open it. Just put it away somewhere safe. Should a question of copyright ownership ever come up, the courts would open the package, on which you have a federal stamp verifying the date of creation. You can put several songs in one envelope, but keep in mind that if you ever need to break the seal, you'll have to open all of them instead of just the questionable one.
We have been told that the Poor Man's copyright is reliable and has held up in court. Given it's the least expensive (and easiest) of all options, many songwriters use this method. TBH, if you choose not to register with CIPO, there is certainly nothing to lose by using the Poor Man's Copyright.
Please note - It is not necessary to do ALL of the above steps for every song you write. For example, if you have written a song that you will not be pitching to anyone, sending out ("shopping"), nor performing live, then no one will ever hear it and therefore cannot infringe on your copyright.
You may wish to use the "Poor Man's Copyright" for songs you intend to record (yourself or others) or perform. When you commercially release a CD, however, it becomes more important that you register it formally with CIPO or the U.S. Copyright Office.
How Long Am I Covered?
Copyright in Canada lasts for the life of the author (and the entire calendar year in which the author dies) plus fifty years. However, the copyright for sound recordings (CDs, MP3s) lasts for the calendar year in which the master recording was created, plus fifty years. For a performer's performance the copyright lasts 50 years after the end of the calendar year when it was actually recorded.
Copyright Ownership = $$$
Copyright ownership can translate into large dollars. Owning copyright in a successful song can generate income from many different sources, for example:
- Royalties from the song receiving radio airplay (plus Neighbouring Rights royalties, if you are also the performer, applies in most countries except for the U.S.)
- Mechanical rights royalties (someone has licensed your song in order to record it, and manufacture CDs for sale)
- Movie/TV/soundtrack/video game synchronization licensing
- Sheet music licensing
- Live performance (by you as an artist, or by others who perform your song)
- Digital uses such as ringtones, satellite radio, etc.
The songwriter is always the first person who owns the copyright to a song, unless it was commissioned by an employer (i.e. you're a staff writer for a publishing company). In these rare cases, workers are paid a salary and arrange to keep some or all of their copyright. This is also known as "work for hire", or work prepared by an employee in the course of their employment, or a work specially ordered/commissioned for use as a contribution to a collective work, motion picture, audio/visual, etc. In the case of a work made for hire the employer may be considered the author of the work and (often) owns all the rights in the work.
Copyrights might be shared by other parties, if the original owner has transferred his or her rights (i.e. assigning the publishing share of the copyright to a publishing company). But the original creator of the work (songwriter) would always be credited as its author, even if the author assigns their copyright to someone else, or was working under commission.
An "assignment" is a transfer of ownership of the copyright from one party to another. A "licence" is a contract which temporarily allows someone else to use your work, and for a specific purpose.
Simply owning a book, CD, or other copy of something does not give you the copyright. The transfer of ownership of a material object (i.e. a CD) representing a copyrighted work does not transfer any rights to the copyright itself. (Just because you bought a CD does not mean you can copy it at will.)
Performing rights societies are collectives which administer copyright payments. They collect fees on behalf of copyright owners (composers, lyricists, songwriters and music publishers) in exchange for granting licenses to businesses, allowing them to perform and/or broadcast music.
The fees are then distributed as royalties to members of the society and to foreign affiliated societies.
There is one performing rights organization in Canada: SOCAN (The Society of Composers, Authors and Music Publishers of Canada). SOCAN is authorized to administer the rights of performance in public or telecommunication.
(For more info see www.socan.ca, call 1-800-93-SOCAN. Or read the article online at saskrecording.ca - click Education.)
The Canadian Copyright Licensing Agency (CANCOPY) and the Union des écrivaines et écrivains québécois (UNEQ) are collectives which are authorized to administer "reprography rights" - photocopying and similar methods of copying printed, published works. These two collectives represent authors and publishers of these works and licence schools, libraries, governments and businesses to photocopy material represented by CANCOPY or UNEQ (which includes most published material in Canada).
Other collectives act on behalf of copyright owners for rights other than performing rights - including the Canadian Mechanical Reproduction Rights Agency Limited (CMRRA), SODRAC, the Canadian Retransmission Collective (CRC), the Audio-Visual Licensing Agency (AVLA), Audio Ciné Films. Inc. (ACF) and the Visual Education Centre (VEC).
Neighbouring Rights apply to sound recordings, performer's performances and communication signals. Although sound recordings have been protected by copyright in Canada for many years, protection for performer's performances was just enacted in 1994 and expanded in 1997. Performers on sound recordings and the producers of sound recordings now receive "equitable remuneration" when their performances and recordings are performed in public or broadcast.
What Can't Be Copyrighted...
A work must be original to obtain copyright protection; this may be questioned in cases of adaptation/re-arrangement.
Copyrights are not the same as "trademarks" or "patents". Trademarks are used to distinguish the goods or services of one person/company from those of another (i.e. slogans, brand names). "Patents" protect new & useful inventions, but do not cover the artistic qualities of an article. Ideas (titles, names, word combinations, plots or characters) are usually not protected by copyright. It is not possible to copyright an idea - i.e. a plot for a novel. But, once the work is recorded or written it can be copyrighted. If you write a song using a true story, the "expression of the information" is protected (the way you have written it) - but not "the facts". Facts are part of the public domain (everyone's property). You cannot hold a copyright for a work that is in the public domain, but you can adapt it and hold a copyright to the adaptation.
Copyright would apply to a song, a play, a novel; but not the title of the song, the idea for the plot, or facts used in the novel.
SOCAN handles most licensing, so you (the songwriter) don't have to issue licenses. For example, licenses are required by the radio stations who wish to play your music, by bars who hire you for a performance, and retail stores who play music for their shoppers, just to name a few.
In some cases licenses are not required. A "Fair Dealing" clause allows use or reproduction of a work for private study, research, criticism, review or news reporting (i.e. a music critic showing your album cover during his TV review of the album).
Compulsory licensing standard rates are common - for example, licensing music for broadcast. (You can't set your own price for allowing a radio station to play your music.).
There are no hard and fast rules as far as how many words, how many notes or what percentage of a work you can "borrow" from someone else before it stops being fair use, and becomes copyright infringement. Each case is unique.
Changing someone else's work - Only the copyright owner may create a new version of a work. You can't claim copyright (e.g. co-writing credit) on another person's work, no matter how much you change it, unless you have their consent.
The invention of duplication machines led to the creation of the Blank Tape Levy, which assumes that a certain amount of illegal copying will take place. A surcharge on blank media such as cassettes and CDs collects money, which is distributed to artists to compensate them for lost album sales.
It is a good idea to keep records of those in the industry to whom you send digital files/albums. (And yes they will be keeping files as well - many industry reps will refuse to accept unsolicited files to prevent future unfounded copyright infringement claims.) Files get passed around, so make sure your copyright notice is on the metadata of every file. While it is EXTREMELY unlikely that the artist who loves your song would decide to steal it rather than paying a simple fee for the use of it, it never hurts to keep good records. And include your copyright notice on any of your scribbled lyrics or lead sheets.
Side note: You must, under Canadian law, send two copies of any recordings you release to the National Library of Canada (those with Canadian content). This doesn't include demos. Send 2 copies of released product, including copyright info if it's not printed on the album, to:
National Library of Canada, Library and Archives Canada
395 Wellington St., Ottawa ON, K1A 0N4
Updates are coming; check their website for updated submission processes.
This also ensure that your work "lives on" in the national archives and will be accessible to future generations. Cool!
And when you are performing your songs or distributing them out for broadcast, register them with SOCAN so that you don't miss out on any royalties that your copyrights may generate. Keep SOCAN informed of any uses that you know of, for example, radio airplay of your song.
If your music is being played on radio - register it with Nielsen Broadcast Data Systems (BDS). This is a second step required to make sure you get any royalties that you are due for airplay.
Questions? Call us, (306) 347-0676 or toll-free in Saskatchewan 1-800-347-0676
Revision date May 15/2018
How Do I Copyright My Song, Canadian Copyright, Copyright My Song, Song Copyrights, How To Copyright, Poor Man's Copyright