Songs and Death

[Jack Russell]

I've been wondering about what to do with my music, once I pass on.

O.k. so this is kinda grim. But everyone should some day write a will, right?

Really though, I'm assuming that most of us on this forum (1) write music, (2) will not sell lots of songs in the public domain, unfortunately, and.....














...(3) we will all die some day.

So, what are the options? Donate it as a collection to a relative, a college, or what? Put them a CD and chuck them into a volcanoe??

 

[Jack Russell]

Geeze. Cleared that room.

No takers?

 

[mjr]

Geeze. Cleared that room.

No takers?

I think what you should probably do is make sure they're all copyrighted, first and foremost.

Next, you're correct, you should get a will of some type. This way, you could have the ownership of the songs (or whatever you copyright) passed on through your will to whomever you wish. Especially if you're making money (or have made money) off them.

Copyrights are good for 75 years after the death of the copyright holder, if I understand correctly.

It would also be a good idea to specify exactly what the songs are titled, and give their copyright numbers, as to avoid confusion and to help you take a correct inventory.

For instance:

"My Song 1", copyright <date here> by Jack Russell, number #12345 (or whatever)

One other thing you could do, especially if you're recording and/or selling your music is to make a couple (or more, you'll see why) of albums. One you can store away somewhere (and do this for each album you put out), possibly in a safe deposit box, and the other you give to a relative (child or children perhaps?). I may take a similar route myself. I'm almost 30, and when I complete my album, I'm going to frame one, and possibly put one up for my son for when he gets older (he's 17 months old today!!).

Anyway, hope that helps a little.

The copyright office (http://www.copyright.gov) should be able to help you with copyright questions.

 

[Jack Russell]

Thanks. That's good advice. This is important if you have released any music product, or had it played on the radio.

But what about artists, who have not sold anything? Maybe the most you've done is work up a band and play in bars, and handed out some CDs, maybe you have had songs on MySpace, and have had 100 downloads. This doesn't really amount to much.

Would you still bother archiving and copyrighting?

 

[mjr]

Thanks. That's good advice. This is important if you have released any music product, or had it played on the radio.

But what about artists, who have not sold anything? Maybe the most you've done is work up a band and play in bars, and handed out some CDs, maybe you have had songs on MySpace, and have had 100 downloads. This doesn't really amount to much.

Would you still bother archiving and copyrighting?

I would. Here's why: Let's say you've got a song that's an original of yours, and you don't copyright it, but you put it on a CD and play it in bars and such. Now, technically the song is copyrighted, but the copyright isn't registered, there's a big difference. Anyway, let's say someone else takes your song, writes down the lyrics, puts slightly different music to it, copyrights it, and some way or another it ends up making a million bucks. You and your family just potentially lost a million bucks.

Besides, the copyright and archive thing is a good way for your name, your songs, thoughts, and your legacy to live on. Maybe the heir to your songs can make some cash off of them if you don't, if they do it right.

Of course, I could be completely wrong on all counts...I'm going to do it, though.

 

[Jack Russell]

Perhaps this topic is more relevant to visual artists than musicians?

Painters, whether they make money at it or not, will want their art to have some kind of, for want of a better word, 'immortality'. They will want their paintings to live on in some kind of archived state, since art might some day be more valuable than it is today. Think of Van Gogh.

There are examples of someone finding an old oil landscape in a crawlspace, and having it appraised, then realizing it is priceless. Yet, such finds can also just as easily be thrown into the junkyard.

Musicians, on the other hand, tend to be more focused on the present and the performances of their songs. The mortality of their work tends to be less critical. As long as they got laid at the gig, and live in a mansion, the long term fruits of their labors are not of high priority.

I happen to be both a visual artist and a composer (no, neither pursuit has resulted in much success--very little in fact. ). So, I'm struggling with both aspects.

 

[Jack Russell]

I would. Here's why: Let's say you've got a song that's an original of yours, and you don't copyright it, but you put it on a CD and play it in bars and such. Now, technically the song is copyrighted, but the copyright isn't registered, there's a big difference.

Good point. Can you elaborate on the difference between registered and nonregistered copyrights?

 

[mjr]

Perhaps this topic is more relevant to visual artists than musicians?

Painters, whether they make money at it or not, will want their art to have some kind of, for want of a better word, 'immortality'. They will want their paintings to live on in some kind of archived state, since art might some day be more valuable than it is today. Think of Van Gogh.

There are examples of someone finding an old oil landscape in a crawlspace, and having it appraised, then realizing it is priceless. Yet, such finds can also just as easily be thrown into the junkyard.

Musicians, on the other hand, tend to be more focused on the present and the performances of their songs. The mortality of their work tends to be less critical. As long as they got laid at the gig, and live in a mansion, the long term fruits of their labors are not of high priority.

I happen to be both a visual artist and a composer (no, neither pursuit has resulted in much success--very little in fact. ). So, I'm struggling with both aspects.

Well, outside of the "archiving" thing, I guess if you wanted to pass on the songs, you could at least do the copyright thing. However, I would still have some type of physical media with the recorded songs, as well as any sheet music and/or lyrics written out or typed.

Other than that, it's entirely up to you!

Good luck!

 

[mjr]

Good point. Can you elaborate on the difference between registered and nonregistered copyrights?

According to the copyright office, a work is copyrighted when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.).

Registering a copyright protects you from people stealing your work and claiming it as their own.

The "poor man's copyright" (where you mail it to yourself and never open it) does not work, and would not hold up in court.

This is what the copyright office says:

How to Secure a Copyright
Copyright Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration. See “Copyright Registration.”

Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date.

Copyright Registration:

Copyright Registration
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Registration establishes a public record of the copyright claim.
Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U.S. Customs and Border Protection website at www.cbp.gov/xp/cgov/import. Click on “Intellectual Property Rights.”
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

This Page may help you...http://www.copyright.gov/circs/circ1.html

 

[David M]

According to the copyright office, a work is copyrighted when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.).

Registering a copyright protects you from people stealing your work and claiming it as their own.

The "poor man's copyright" (where you mail it to yourself and never open it) does not work, and would not hold up in court.

Sorry man, but you are wrong.

You are correct that "a work is copyrighted when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.)." But you do not have to register to protect you from people stealing your work and claiming it as their own.

A "poor man's copyright" WILL hold up in court. However, registration with the copyright office does have some advantages. For example, if you have to go to court with someone who tried to steal you work and you are registered, the other person would have the burden of proof. If you are not registered you (as the Plaintiff) have the burden of proof.

But here is the way you prove your copyright. You hand the judge an envelop mailed to you (I recommend by certified mail); he looks at the date, opens it and finds a CD of your song and/or a lead sheet. This is damn good proof and WILL hold up in court, assuming there is not something fishy looking about the envelop.

Now, I said there are advantages to registration. One advantage is that, had you registered the judge will make the other guy pay your attorney fees. But with the "poor man's copyright" won’t get attorney fees. But you would win the lawsuit.

Let me clear up one thing. Whether you register or send a copy to yourself in the mail, that act does not "create the copyright", it just provides evidence. The "copyright" is created automatically when the work is when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.)."

I won't go into all the details about the other advantages to registering. But generally, I would not go to the trouble to register unless you are releasing the music on a CD.

Now, I think your original question related to what happens when you die. Well, yeah you may want to include something in your will devising all of your “intangible property right”, this would include copyrights and any royalty right (a different animal altogether).

 

[mjr]

Sorry man, but you are wrong.

You are correct that "a work is copyrighted when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.)." But you do not have to register to protect you from people stealing your work and claiming it as their own.

A "poor man's copyright" WILL hold up in court. However, registration with the copyright office does have some advantages. For example, if you have to go to court with someone who tried to steal you work and you are registered, the other person would have the burden of proof. If you are not registered you (as the Plaintiff) have the burden of proof.

But here is the way you prove your copyright. You hand the judge an envelop mailed to you (I recommend by certified mail); he looks at the date, opens it and finds a CD of your song and/or a lead sheet. This is damn good proof and WILL hold up in court, assuming there is not something fishy looking about the envelop.

Now, I said there are advantages to registration. One advantage is that, had you registered the judge will make the other guy pay your attorney fees. But with the "poor man's copyright" won’t get attorney fees. But you would win the lawsuit.

Let me clear up one thing. Whether you register or send a copy to yourself in the mail, that act does not "create the copyright", it just provides evidence. The "copyright" is created automatically when the work is when it is fixed to a specific medium (painting on canvas, lyrics on paper, song on tape/cd, etc.)."

I won't go into all the details about the other advantages to registering. But generally, I would not go to the trouble to register unless you are releasing the music on a CD.

Now, I think your original question related to what happens when you die. Well, yeah you may want to include something in your will devising all of your “intangible property right”, this would include copyrights and any royalty right (a different animal altogether).

I'm more right than you might think...

http://www.copyrightauthority.com/poor-mans-copyright/
http://en.wikipedia.org/wiki/Poor_man's_copyright
http://www.snopes.com/legal/postmark.asp

Besides, "poor man's copyright" can be faked. Easily.
So, according to my research, a poor man's copyright will not hold up in court.

 

[David M]

I'm more right than you might think...

http://www.copyrightauthority.com/poor-mans-copyright/
http://en.wikipedia.org/wiki/Poor_man's_copyright
http://www.snopes.com/legal/postmark.asp

Besides, "poor man's copyright" can be faked. Easily.
So, according to my research, a poor man's copyright will not hold up in court.

The most important thing I saw on the link was the disclaimer that said "I am NOT A LAWYER and have no basis to give you legal advice from this website that you can deem safe to use in a court of law".

I am sure you will find a lot of advice out there on the internet. Take it with a gain of salt. My guess is that most of the sites that tell you a “poor man’s copyright” will not hold up in court are non-lawyers trying to sell you some scam service to help you register. I did not take the time to look at the links that you sent to that close because I have personal experience in this area and I know that I am right. Right out of law school I probably would have advised client’s to register everything out of an abundance of caution. But after having a little more experience I do know that mailing it to yourself works 99.9% of the time.

I was not trying to put you down. I just happen to know that your advice was wrong and I wanted to correct you since you seemed to hold some pretty common misconceptions about copyrights that I hear from a lot of people.

 

[David M]

Well, outside of the "archiving" thing, I guess if you wanted to pass on the songs, you could at least do the copyright thing. However, I would still have some type of physical media with the recorded songs, as well as any sheet music and/or lyrics written out or typed.

Other than that, it's entirely up to you!

Good luck!

Here is an example of the misconception. You don't HAVE a copyright unless you have "some type of physical media with the recorded songs" or some type of "sheet music and/or lyrics written out or typed".

And once you do have "some type of physical media with the recorded songs" or some type of "sheet music and/or lyrics written out or typed" you already HAVE a copyright, without doing anything further.

But if you ever have to go to court you need to have PROOF that you have a copyright. That is where mailing it to yourself or registering comes in to play. And either one of these methods can provide you with the poof you will need.

 

[Jack Russell]

Regarding the "poor man's copyright": I think you are both right partially.

The whole issue comes to a head when you end up in court. If you find yourself in such a case, methinks that the copyright evidence is one thing but witnesses on both sides will also weigh heavily, and even more heavily. After all, the case is about the dispute of the copyright itself.

In my own case, I had a tune I wrote back in 1983 or so. I had recorded it with a group that actually was about to break up. Thus it was a "swan's song" album, if you will. I ended up with a nice recording of songs, and nothing to do with them. We gave out a few to friends then went separate ways.

A few of our friends in the music scene knew us well and were surprised that this was the end, as some of the music was very good.

Years went by. The original registered copyright (U.S. Library of Congress--19 years???) expired, I am sure of it. Then a friend e-mailed me and asked if he could record my tune with his own solo band. I said "sure, as long as you cite authorship (me) and send me a contract for it." [I wasn't concerned about royalties, as this was am amature project, but I wanted to make sure I got the CREDIT I DESERVED.] This "friend" then tried to pursuade me that all this copyright stuff was "bullshit" and not worth the hassle. I insisted. Then he dropped the issue. I didn't hear from him after that.

To this day I don't know if he went ahead and recorded it or not. I was waiting to see if I heard the tune on the radio, then I was going to sue the motherfucker. The last thing I said to him was "hell yes I'd sue anyone who doesn't acknowledge me as the writer!"

The moral of the story: If this ended up in court, I am absolutely positive that I can produce many credible witnesses who will testify that that song is my work.

My case would be a slam dunk, even though the copyright was not cuttent or solid.

 

[Jack Russell]

But if you ever have to go to court you need to have PROOF that you have a copyright. That is where mailing it to yourself or registering comes in to play. And either one of these methods can provide you with the poof you will need.

A tangent: My first copyright was made in 1981 with the U.S. Library of Congress. According to their instructions, all I had to do was put all my songs onto a cassette (as many as I could fit) and then copyright under one single title. I asked if they listened to it...you know...to see if I am stealing work pr something (hahaha ). Nope, they just filed it away.

So, even the best "registered" copyright process of the day (1981) was not perfect. I could have put anything on that tape. I could even have given them a blank tape.

 

[mjr]

A tangent: My first copyright was made in 1981 with the U.S. Library of Congress. According to their instructions, all I had to do was put all my songs onto a cassette (as many as I could fit) and then copyright under one single title. I asked if they listened to it...you know...to see if I am stealing work pr something (hahaha ). Nope, they just filed it away.

So, even the best "registered" copyright process of the day (1981) was not perfect. I could have put anything on that tape. I could even have given them a blank tape.

There was a case recently of a guy who tried to copyright something like 4 1/2 minutes of silence...and there was another one where a guy tried to copyright a toilet flush.

 

[mjr]

Regarding the "poor man's copyright": I think you are both right partially.

The whole issue comes to a head when you end up in court. If you find yourself in such a case, methinks that the copyright evidence is one thing but witnesses on both sides will also weigh heavily, and even more heavily. After all, the case is about the dispute of the copyright itself.

In my own case, I had a tune I wrote back in 1983 or so. I had recorded it with a group that actually was about to break up. Thus it was a "swan's song" album, if you will. I ended up with a nice recording of songs, and nothing to do with them. We gave out a few to friends then went separate ways.

A few of our friends in the music scene knew us well and were surprised that this was the end, as some of the music was very good.

Years went by. The original registered copyright (U.S. Library of Congress--19 years???) expired, I am sure of it. Then a friend e-mailed me and asked if he could record my tune with his own solo band. I said "sure, as long as you cite authorship (me) and send me a contract for it." [I wasn't concerned about royalties, as this was am amature project, but I wanted to make sure I got the CREDIT I DESERVED.] This "friend" then tried to pursuade me that all this copyright stuff was "bullshit" and not worth the hassle. I insisted. Then he dropped the issue. I didn't hear from him after that.

To this day I don't know if he went ahead and recorded it or not. I was waiting to see if I heard the tune on the radio, then I was going to sue the motherfucker. The last thing I said to him was "hell yes I'd sue anyone who doesn't acknowledge me as the writer!"

The moral of the story: If this ended up in court, I am absolutely positive that I can produce many credible witnesses who will testify that that song is my work.

My case would be a slam dunk, even though the copyright was not cuttent or solid.

To my knowledge, registered copyrights last the life of the author plus 70 years...

 

[David M]

To my knowledge, registered copyrights last the life of the author plus 70 years...

Almost right. All copyrights last the life of the author plus 70 years...

As far as trying to "copyright" silence, or someone else’s work by sending it in to the copyright office, remember, registering something does not "create" a copyright it just creates a record of it at a public office. So all you do if you send a blank tape to the copy right office is waste money on a filing fee that has no legal effect at all.

The copyright is automatic once the work is recorded or written out on paper. Sending the form in to register does not create a copyright. Jack Russell, yeah sounds like you got the right idea. You could still possibly prove up your case with just witnesses. It just makes it a little more shaky on the outcome if the other guy turns out to be a rock star with a big legal team.

Here is a thought. Suppose you record a song and do the “poor man’s copyright” by mail. Then someone copies your work and registers it to try to get a registered copyright. It goes to court. The judge is going to look at the date of the “poor man’s copyright” and the date of the registered copyright. He will then see that the “poor man’s copyright” is the earlier one of the two and your “poor man’s copyright” will win over the other guy’s registered copyright.

But just so I am clear on the “poor man’s copyright” . Once you get it back in the mail don't get excited and open it because then you have nothing at all. You need to give the sealed envelop to the judge and let him open it.

 

[mjr]

Almost right. All copyrights last the life of the author plus 70 years...

As far as trying to "copyright" silence, or someone else’s work by sending it in to the copyright office, remember, registering something does not "create" a copyright it just creates a record of it at a public office. So all you do if you send a blank tape to the copy right office is waste money on a filing fee that has no legal effect at all.

The copyright is automatic once the work is recorded or written out on paper. Sending the form in to register does not create a copyright.

Here is a thought. Suppose you record a song and do the “poor man’s copyright” by mail. Then someone copies your work and registers it to try to get a registered copyright. It goes to court. The judge is going to look at the date of the “poor man’s copyright” and the date of the registered copyright. He will then see that the “poor man’s copyright” is the earlier one of the two and your “poor man’s copyright” will win over the other guy’s registered copyright.

If that's the case, I'm gonna win me a lot of lawsuits.

All you have to do is mail yourself an unsealed envelope (like the manilla ones with the clasp), so you get a postmark.

Then, when a new song comes out you like in a year or so, snag it, write down the lyrics, do your own version, and seal it in the already-postmarked envelope...then sue whoever holds the registered copyright for infringement.

There you go! Faked poor man's copyright.

I can almost guarantee you that if you look at cases of "poor man's copyright" that have come through the court system, very few, if any, have stood up in court. If so, I'd like to see some examples.

This is directly from snopes.com:

Mailing one's works to oneself and keeping the unopened, postmarked envelope as proof of right of ownership to them (a practice known as the "poor man's copyright") has no substantive legal effect in the U.S. We've yet to locate a case of its use where an author's copyright was established and successfully defended in a court of law by this method. At best, such mailings might serve to establish how long the author has been asserting ownership of the work, but since the postmarked-and-sealed envelope "proof" could be so easily circumvented, it is doubtful courts of law would regard such evidence as reliable.

So, according to that, it wouldn't stand up in court.

 

[David M]

If that's the case, I'm gonna win me a lot of lawsuits.

All you have to do is mail yourself an unsealed envelope (like the manilla ones with the clasp), so you get a postmark.

Then, when a new song comes out you like in a year or so, snag it, write down the lyrics, do your own version, and seal it in the already-postmarked envelope...then sue whoever holds the registered copyright for infringement.

There you go! Faked poor man's copyright.

That would look pretty fishy. Like I said, if it looked fishy the judge is going to see through it. But you do make a great point. That is why I advise sending it certified so the weight of the envelope is on there. Like I said 99.9% of the time certified envelope with a date stamp is going to work fine. You have to remember that this envelope is going to be your evidence, should you need it, so you want to do the best job you can to preserve the best evidence that you can.

I have no idea who created that website, snope.com but I can almost guarantee you it was not an attorney in the music industry. I don't believe something just because someone posts on a website.

You can't go wrong by registering. All I am saying is that you do not have to. I know that I will never convince you in a million years that you are wrong. I am just providing information for others.