The short answer to that question (which I am asked more times than I can count) is that it is actually copyrighted upon creation and fixing it to a tangible form. So, if you have written out your lyrics (and/or the notes/chord progression), or recorded yourself playing it, your song already is “copyrighted.” Pretty simple, isn’t it?
But life usually isn’t as simple as it may seem . . . and what most people are really asking when they pose that question is – “How do I best protect my music from being stolen or being used without my permission or without paying me?” The best answer to that question is by registering your work with the U.S. Copyright Office. Registering your work is relatively inexpensive, usually pretty easy, and it provides the creator/copyright owner with the protections most people are seeking when they are asking about copyright.
“But what if I mail the song to myself and don’t open the envelope? Doesn’t that help?”
My response to that second most common question about copyright is that, although it might help establish that you wrote the song before an alleged infringer did, it does very little (or perhaps nothing) to help you recover any damages. This so called “Poor Man’s Copyright” concept is nowhere to be found within the Copyright Law, and it is not a substitute for formal registration. And for about an extra thirty-five bucks, it usually just makes sense to register your work.
Among other benefits, registering your work with the Copyright Office gives you a formal public record establishing you as the copyright owner of the work; and if registration occurs before or within 5 years of publication, it is prima facie evidence of the validity of the facts contained in your copyright certificate. Registering your work also provides the potential to get statutory damages of up to $150,000 for willful infringement (when someone intentionally takes your song or a substantial part of it), as long as your registration is completed within three months of publication or before an infringement occurs. With pre-infringement registration, you may also be able to recover your attorney’s fees if you win the infringement lawsuit.
The second of these benefits is perhaps the most important, and for those reasons alone, I always recommend that Artists take the time and pay the nominal fees to register their work – or hire someone to do it for you. The ability to recover statutory damages and get reimbursed for attorney’s fees can make all the difference in the world when it comes to deciding whether it is worth it to pursue a copyright infringement lawsuit.
Being able to claim statutory damages is very important. If your work is not registered before an infringement occurs, any recovery you may obtain likely will be limited to your “actual damages.” Actual damages will be calculated as the amount of money that you can prove you actually lost due to the infringement, or the amount of profit the infringer made on the copyrighted material. Proving either of these measures of your actual damages to the court’s satisfaction is very often difficult and sometimes impossible; and in attempting to do so, you may have to hire one or more qualified experts (forensic accountants, valuation experts, and etc.). Very often, this is cost prohibitive. Think about it, what good would it be to have to pay as much as $5,000 -$10,000 in expert fees to find out that you can only recover about $2,500.00. Of course, the numbers presented here purely are hypothetical, but experts can get real expensive . . . real quick, and the scenario described here happens more often than you might think.
Recovering your attorney’s fees and the costs of the suit may be even more important than your ability to get statutory damages. Now, before you start ragging on attorneys for being blood-sucking, money-grubbing opportunists (and many are, but those who know me, know that I am not . . . I hope) let me explain why this could be important to you than to your prospective attorney. Attorneys are human beings (I swear, at least some of us are). Just like you, we have to eat, wear clothes, take care of our families, and we generally prefer to live indoors. In short, we have to make a living. Generally speaking, attorneys charge for their services in one of three ways – as a flat fee for certain services, through regular hourly billing (usually with a retainer required up-front), or on a contingency basis. Occasionally, one or more of these billing schemes can be combined together to create a hybrid method of compensating the attorney for his or her services.
For the most part, the flat fee method does not work for an infringement claim, beyond perhaps an initial cease and desist or demand letter – which often does not provide the result or recovery you are seeking. When attorneys quote a flat fee for any service, we generally have some idea about the amount of time and the associated hard costs that will be involved in providing the service. We use that information to calculate an appropriate flat fee, but where the scope of the work is too difficult (or impossible) to precisely define, as it most often is with litigation, using a flat fee is too risky. If the flat fee amount is set too high, the client will end up paying too much for the services provided; and if the fee is set too low, the attorney’s compensation could be pennies per hour – and that quickly becomes an anti-motivator to making that particular work a priority. In that regard, if you know of any attorney that is willing to take a copyright infringement litigation matter on a flat fee basis – please send me their contact information, because I would love to know how they can survive that way.
The regular hourly billing method, with an up-front advance against fees (a.k.a. – a retainer), definitely works in a copyright infringement situation. In fact, most attorneys traditionally prefer to work under this type of payment structure because they are relatively assured that they will actually get paid for the work they perform – irrespective of the outcome of the case. In a “perfect world”, this billing method is the “fairest” because you, the client know that you are getting precisely what you are paying for – the attorney’s time and skill, and the attorney, in turn, knows that the more time and effort he puts into your case, the more compensation he will be entitled to receive. But, of course, this is not “a perfect world” and you may not have $2,500, $5,000, or $10,000 lying around to pay an attorney to take on your case – and yes, you really are looking at numbers like these. Even at $165 per hour, which is my current rate (and which is probably one of the lowest in the Vegas market) invoices can add up very quickly, especially at the beginning of a lawsuit, where the attorney will spend a lot of time investigating your specific claim, researching relative case law and statutes, and, where there inevitably will be certain hard costs for court filings and process server fees.
As for the contingency fee basis, this method potentially is the most attractive for you, the client, and your attorney. But, in order for this method to be viable you really must have a good case and a high probability of success – not just in your own mind, but in the mind of the attorney you select. Keep in mind, however, that attorney’s typically will require a contingency rate of 33 1/3% (one third) of any recovery, plus reimbursement of any out of pocket costs, if the matter settles before the need to file an actual lawsuit, and if filing a lawsuit becomes necessary, the attorney’s percentage increases to 40%, plus costs, even if the case settles without a trial. The reason for such percentages is really rather simple. In a contingency case, the lawyer bears most of the risk. You generally pay nothing up front and often don’t pay anything unless and until your case settles. So, the attorney invests his time and resources on a possibility that you will win and that you will be able to collect from the infringing party. If you don’t win, or you can’t actually collect any money, the attorney has basically worked for free – and I can tell you, that really sucks!
Some attorneys, myself included, often are willing to be flexible and work with clients on a hybrid basis that includes a significantly reduced hourly rate, plus a reduced contingency rate if you win the case. In my opinion, this may be the single best solution, as you get the legal services you need and the attorney gets at least some compensation for his time and effort and has a lot of incentive to pursue the maximum recovery available.
Now that you’ve been given a five-cent lesson in attorney billing practices, let’s get back to the subject at hand – the benefits of formal copyright registration. As noted above, registering your work with the Copyright Office, may entitle you to statutory damages of up to $150,000.00 and the ability to be reimbursed for your attorney’s fees. As an attorney, these things make any “good” case a whole lot better, and I am more likely to agree to working with someone whose works are already registered. And these benefits should be important to you, the copyright owner, as well.
Think about it. Say, for instance, that you can prove actual damages of $100K, because that is what you lost or what the bad guy gained. First, take out the 33 1/3% (because your lawyer is a hell of a guy and decided not to claim the full 40% to which he is entitled under your agreement), and you’re down to $67K. Next, deduct the costs of the litigation (filing fees, postage, service of process, etc.) of say $1,000. And don’t forget about your forensic accountant (or other expert) who had to carefully examine all of your accounting files, and all of the infringer’s books and records at a cost of $5,000 (not an unreasonable or unusual amount and usually required upfront). Now you’re at $61K and that may sound like a lot of money, but YOU LOST $100,000.00! What if you can only prove $10K in actual damages? You can do the math, but not many attorneys that I know will fully litigate any case through a trial if their potential compensation is only 4K.
Now enter the attorney’s fees recovery provision of our beloved copyright law. In most cases, your attorney’s fees amount will be added to your judgment – meaning that if you are awarded the statutory damages of $150K, and you incurred 50K in attorney’s fees (i.e. – through a 1/3 contingency fee agreement) plus another 10K in costs related to the suit, your total judgment could be for $210,000. This means you get to keep the full $150,000 dollars in damages that you were awarded. Now, that was worth the $35.00 in copyright registration fees, wasn’t it?
Get it? Your work is copyrighted on creation and fixture to a tangible medium, but your best protection and best potential for recovery of damages comes through the formal registration of the work with the U.S. Copyright Office. Plus, you may indeed be required to register your work (but may not necessarily be entitled to statutory damages and/or attorney’s fees) in order to file the lawsuit in the first place. And, you get a cool certificate that you can hang on your refrigerator for all your friends and family to admire.
© 2013 Mark R. Smith, Esq.
Mark R. Smith, Esq. is the founder and principal owner of the Law Offices of Mark R. Smith, P.C. in Las Vegas, NV. The Law Offices of Mark R. Smith, P.C., represents musicians and other entertainers in entertainment and intellectual property matter, as well as many other areas of the law. Visit www.MarkRSmithLaw.com or call us at (702) 518-ROCK (7625).
This article is intended for informational purposes only and should not be relied upon as legal advice. No Attorney-Client relationship is intended or created between the author and reader. We strongly recommend discussing your individual legal circumstances with an attorney.