The Indie Musician’s Guide to Copyright

By Nathan McAlone

“Copyright” is a word that strikes fear into the heart of many an indie musician. We’ve heard horror stories from both sides in the ongoing copyright war—artists like Jeremy Lim having their work stolen and sold in the iTunes store, grandmas being sued for unfathomable sums by the RIAA for downloading a few albums. Everyone knows copyright is something they should be paying attention to, but few have a complete understanding of how it works, or the ways in which it can affect them.

With this in mind, we enlisted the help of two lawyers and a representative from YouTube to help us put together an outline of the basics of copyright, designed for an indie musician who doesn’t have the luxury of a team of lawyers.  While it shouldn’t be considered a substitute for legal advice, this guide will give you a good layman’s understanding of the things you should watch out for, both as an artist and as a consumer of music. Hopefully it can save you from some unnecessary legal headaches.

Even if you haven’t done anything to protect yourself, your songs are still copyrighted from the moment you create them. Whenever you record a song, set it down on paper, or otherwise fix it in a “tangible form,” you’re protected. There are generally two different parts of a song copyright: the composition and the recording.

According to Washington attorney Kevin Jablonski, the composition is usually recognized to be the melody and the lyrics (not the beat). If you wrote the music and your bandmate wrote the lyrics, you would split the copyright for the composition. The other element is the sound recording itself, though you don’t have to have recorded the song for the composition be copyrighted. If you were the first one to create a work, no one can steal your copyright.

Even though you’re automatically protected, California attorney Ian Gibson says it’s usually a good idea to register your work with the U.S. Copyright Office (for a filing fee of $35). When you register your copyright, you’re doing what the government wants you to do, and because of this they give you additional protections.

The first benefit of registering your copyright is that you don’t have to prove the infringement cost you any money (known as “actual damages”). If you don’t register your copyright, you have to show to the court that you lost money because of the infringement, which can be a tough proposition.

If you register your copyright you can seek what’s known as “statutory damages.” This means that instead of proving how much money you lost, the court can award you a specific amount of money set out in a statute. For run of the mill infringement, there is a spectrum that goes from $200 dollars to $30,000 per work, and for willful infringement, it goes up to $150,000. But you don’t have to prove the infringement cost you a dime.

The second benefit is that you can seek attorney’s fees awards. This means that if you win your case, the court can order the infringer to pay your attorney’s fees. Gibson says that with attorney’s fees routinely running north of $500,000 for cases that go to trial, this can be a powerful negotiating tool.

To have it be useful in court, you must also have registered your copyright in a “timely manner.” This means registering either before the infringement occurs or within the first three months of the publication of your work. If you haven’t done so already, you should register your work as soon as possible.

Before you even think about getting a lawyer, Gibson says you should consider if the infringement is actually harming you. “Going through a lawsuit is not a pleasant process,” he says. “Avoid it when you can.” Many times a copyright infringer is actually a fan of your work, someone who has found some value in it, and if you can find a way to work out an arrangement outside the legal system it might be best. Of course then there are cases where someone grabs your song off Soundcloud and illegally uploads it to Spotify under a different name. Or when someone wholesale takes your instrumental track and tries to make money off it by turning it into a different song. In those cases, it’s understandable why you might want to take the legal route.

The reality is that even though your work is copyrighted the moment you set it down, unless you register your copyright, an attorney is unlikely to take your case. For most indie musicians, paying the attorney’s fees out of pocket won’t be an option financially. This means they will have to find an attorney willing to take the case on “contingency”—taking a percentage of the award instead of charging an hourly rate. Since “actual damages” are a lot harder to prove in court than “statutory damages,” it’s more likely an attorney will take your case if you registered your song or album.

If you do decide to go with the legal approach, you should capture as much evidence as you can. This means screenshots, notes on what time of day you found the infringement, the url you visited, how you got there, and anything that could help identify who the potential infringer is. Oftentimes evidence on the internet is fleeting, so this aspect is very important. Jablonski says there are also associations in various cities, such as Washington Lawyers for the Arts, who can help you with free legal advice or other legal resources.

Even if you register your copyright and gather evidence, Gibson still says he rejects more cases than he takes. That’s because one kind of case—proving that someone has stolen elements of a composition, usually the melody—can be difficult to win. Composition cases are one of the most complex type of copyright cases and often require music experts to deliberate on how similar one song is to another. If you think someone ripped off your melody and turned it into another song, you might be out of luck.

Cases that involve unlicensed sampling—or copying a whole song and illegally distributing it—are much more straightforward. It’s easy to compare one sound file to another and show they are essentially the same. This means attorneys are more likely to take these types of cases on contingency, and that if you use an unlicensed sample you are much more likely to get busted than if you copied someone’s melody.

Contrary to certain myths that persist in the music industry, no amount of sampling is legal if it hasn’t been cleared. You don’t get a certain number of beats or seconds. If you don’t clear a sample, it’s illegal. End of discussion. Though many indie artists will slide under the radar with illegal samples if their songs don’t blow up, Gibson advises artists to get a license every single time.

A side note to this basic rule is the idea of “recreating” a drumline. Though you still can’t merely copy and paste a drumline from someone else’s song, Jablonski says you stand on slightly better ground if you recreate it using your own instruments (i.e. a drum machine). Courts usually recognize the composition copyright as pertaining to the melody and not the beat, so if you are not infringing on the recording copyright (by sampling), you are less likely to be found in violation of a copyright. If you must jack someone else’s beat, you’re better off recreating it.

Most copyright cases settle. Usually the potential damages are so wide-ranging (sometimes $200 to $150,000), that Gibson estimates over 95% of cases are settled out of court. There’s just too much uncertainty. The settlement amount vastly depends on the strength of the case and the parties in the litigation, but Jablonski says that more pedestrian cases probably settle between $2,000 and $4,000. This was the range the RIAA most often used when going after file-sharers.

Whether you decide to get a lawyer or not, one of the most important parts of dealing with a copyright issue is getting the infringing work taken down. This usually means sending a “takedown notice.” A takedown notice is basically a legal letter that says remove the infringing material “or else.” There are nonprofit organizations (like the WLA mentioned previously) that can help you create the exact right type of notice for your case, but usually you can do it yourself.

And more than likely, the infringement will occur on a site with its own proprietary system for copyright claims, like YouTube or iTunes. The DMCA (Digital Millenium Copyright Act) gives sites with user-uploaded content like YouTube “safe harbor” from copyright claims if they comply with certain procedures. Basically if you complain to them about infringing content, they have to take it down. And they will.

Even if you get the infringing music taken down off a site like iTunes, it still might be hard to find out who the pirate was. That’s because hosting sites that give out royalties usually use an intermediary call a distributor instead of dealing directly with artists. If you want help finding out who was pirating your music, or infringing on your work, these distributors can often be your best bet. Use the hosting site (i.e. iTunes) to find out who distributed the music.

The laws around “covers” are completely different than those pertaining to other aspects of copyright and are worth reviewing, as many indie musicians are unaware of them. Unlike clearing a sample, you always have the legal right to cover someone else’s published song, even if they don’t want you to. The person who wrote the song has no say in whether or not you cover it, even if you are selling recordings of that cover for profit. I can only imagine how an artistic perfectionist like Kanye feels about this law.

Though you aren’t obligated to ask for permission to record a cover, you are required to pay what is known as a “mechanical royalty” or a “digital royalty” depending on the type of medium you are going to use—CD, digital download, stream, etc.  The current mechanical rate for a CD is 9.1 cents per copy for songs under five minutes, which is a pretty great deal to be able to use someone’s song without their approval. Score one for artistic expression. The easiest way to obtain these types of licenses is through a nonprofit called the Harry Fox Agency.

One of the topics both lawyers brought up that they said is routinely misunderstood is the idea of “fair use.” People often think that “fair use” means that if you aren’t making money off of something, you can’t be sued for copyright infringement. This is false. Even if you are making absolutely nothing off of copyright infringement, you can still be sued. And the widespread practice of rapping over other people’s instrumental tracks without their permission as long as its on a free mixtape isn’t “fair use,” it’s illegal.

That said, “fair use” is an interesting and murky topic when it comes to music, especially in the case of Girl Talk. “It begs the question, if he is violating the law, why hasn’t he been sued,” muses Gibson. “I think the labels are afraid of the answer. If he were to prevail on a ‘fair use’ defense, that would open the floodgates.” Jablonski thinks Girl Talk would have about a 50/50 chance of beating a lawsuit. “He’s only taking snippets of songs that other people recognize, not diminishing the value of their copyright. No one is going to buy his stuff in lieu of buying someone else’s stuff. But at the same time, he is making a commercial gain by taking other people’s stuff, and that doesn't help him.”

“Fair use” rests on four separate criteria. 1. The purpose and character or your use (including whether it’s for commercial or nonprofit educational purpose). 2. The nature of the copyrighted work (including whether it’s in the public interest). 3. The amount of the portion taken. 4. The effect on the potential market. As you might have guessed, it’s sometimes hard for even experienced lawyers to parse out all the angles of a specific “fair use” case.

When contemplating whether your musical creation might fall under “fair use” (though the answer is probably “almost never”), you have to remember that ALL these factors are weighed, not just one. But if you’re still determined to try to classify your possible infringement as “fair use,” read this summary of “fair use” cases pertaining to music. It would also be a good idea to consult a lawyer, you might need one.

Copyright law is something that will undoubtedly change as the digital revolution in music continues. Gibson hopes we will see a loosening of the rules. “Copyright law in general is a little too strict and overbearing,” he says. “It’s insanely out of date, ripe for a refresh. I would like to see a Girl Talk-type usage not be criminalized.”

But he’s not overly optimistic. “If history is any indication, these laws have only grown to benefit the copyright holder. The penalties have become even more severe.” Jablonski thinks its more important than ever for musicians to understand copyright law now that much of the business side of the industry is being thrust on their shoulders. Labels won’t necessarily be there to help you with the details anymore. You need to take control.

For those of you who feel like we just bombarded you with more information than you could possibly remember, here’s a bare bones checklist that should help you in your dealings with copyright.

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  Register your copyright (single or album) with the U.S. Copyright Office

  
  


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  Never use a sample without a license

  
  


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  Use YouTube’s “Content ID” program

  
  


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  Look for organizations that give free legal aid to musicians

  
  


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  If you can’t find a pirate, ask the distributor

  
  


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  You can cover anyone, just use the Harry Fox Agency to pay the royalty

  
  


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  “Fair Use” is hardly ever a valid excuse for copyright infringement

  
  

DISCLAIMER: Ian Gibson, Esq. is an attorney licensed in the state of California. Kevin D. Jablonski, Esq. is an attorney licensed in the state of Washington. As with any general legal information, this document is no substitute for specific legal advice. If you have a legal issue that needs personalized attention, please contact an attorney. This document is for educational purposes only and is not intended to create an attorney-client relationship. This material may be considered advertising under applicable state laws.