Copywriting

[john]

http://www.copyright.gov/circs/circ50.pdf

 

Thanks MP. I think that doc is linked to from the copyright topic, if not I'll add it. It pretty well says what we have said above regarding the UK and the UK interpretation of publication.

[john]

JOHN:

 

This is the definition of "publication" under Â§ 101 of the U.S. Copyright Act.

 

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly” means— 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

 

Clearly, making your song available for download online constitutes publication under the first sentence.  Clearly, a radio station broadcasting your song constitutes publication under the highlighted second sentence, and the definitions of performing a work "publicly."  How is uploading a digital phonorecord of your sound recording to Soundcloud for the purposes of further display and public performance via an internet stream to the whole world materially different in this regard than you giving your CD to radio station for the purpose of having it broadcast over the air?  (Keeping your Soundcloud file "private" could be different though, I suppose.)  The U.S. Supreme Court has not weighed in on this specific issue, and the Copyright Office refuses to take a position on it.  I have read some arguments that the internet does not constitute publication under the Copyright Act, and I myself have vacillated on the issue.  But, no more.  After studying the issue further, I now believe the notion that online works are not "published" under the Copyright Act is an untenable one, for the reasons I just gave based on the language of the statute itself, and for more practical reasons.  As I said above, I can't imagine trying with a straight face to convince a judge that you made your work available to the whole world on the internet, but you didn't "publish" it.  But, regardless, the more important point is that "an ounce of prevention, is worth a pound of cure."  In my opinion, given the stakes, to assume that your online work won't be considered by a U.S. court to constitute publication under the U.S. Copyright Act, would be foolhardy.

 

Thanks David.

 

So, if the lyrics or songs posted were offered as downloads of any sort that would be seen as a transfer of ownership of the copy and therefor it would be deemed publication. Money is not required to be transferred. Good to know.

 

Then the same measure of publication would exist on Soundcloud, Reverbnation. Streamed audio would not constitute a transfer of ownership, and the work would therefor not be deemed as published, only if you offer a download.

[john]

Thanks for that David. Nice and clear Pretty close to what my original understanding was in terms of standpoint, if not actual mechanism which I now understand much better. The UK case was always much easier to follow

[snabbu]

§ 412 . Registration as prerequisite to certain remedies for infringement¹²

In any action under this title, other than an action brought for a violation of the rights of the author under section 106A(a), an action for infringement of the copyright of a work that has been preregistered under section 408(f) before the commencement of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement, or an action instituted under section 411©, no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

 

As you can see, Gary, under the U.S. Copyright Act, if your work is unpublished and unregistered when it's infringed, you cannot "go and register the work and proceed with your case and remedy of statutory damages" as you claim.  You would be barred from getting statutory damages at that point, becuase you didn't have the foresight to register right away and before the infringement.

What does section 106a refer to the exception in the preamble?

So if it is unpublished you only have 30 days post infringement unpublished 90days published? Seems a bit strange.

Cheers

Gary

[snabbu]

Ok I see 106 a is moral rights

Cheers

Gary

[snabbu]

JOHN:

 

This is the definition of "publication" under Â§ 101 of the U.S. Copyright Act.

 

“Publication†is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly†means— 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

 

Clearly, making your song available for download online constitutes publication under the first sentence.  Clearly, a radio station broadcasting your song constitutes publication under the highlighted second sentence, and the definitions of performing a work "publicly."  How is uploading a digital phonorecord of your sound recording to Soundcloud for the purposes of further display and public performance via an internet stream to the whole world materially different in this regard than you giving your CD to radio station for the purpose of having it broadcast over the air?  (Keeping your Soundcloud file "private" could be different though, I suppose.)  The U.S. Supreme Court has not weighed in on this specific issue, and the Copyright Office refuses to take a position on it.  I have read some arguments that the internet does not constitute publication under the Copyright Act, and I myself have vacillated on the issue.  But, no more.  After studying the issue further, I now believe the notion that online works are not "published" under the Copyright Act is an untenable one, for the reasons I just gave based on the language of the statute itself, and for more practical reasons.  As I said above, I can't imagine trying with a straight face to convince a judge that you made your work available to the whole world on the internet, but you didn't "publish" it.  But, regardless, the more important point is that "an ounce of prevention, is worth a pound of cure."  In my opinion, given the stakes, to assume that your online work won't be considered by a U.S. court to constitute publication under the U.S. Copyright Act, would be foolhardy.

Well then I must be totally wrong then.

Good oh

Cheers

Gary

[john]

So now were all published in the US, by just posting on here better stop going there for holidays because I have never sent copy's of my stuff to the Loc on publication. This is an offence. Oh dear and I was such a law abiding citizen.

What to do

Maybe song stuff model is unworkable because according to Dave every song posted here must be forwarded and registered with the library of congress. As a published work quite separate from copyright registration so what does that cost these days

$35?

Cheers

Gary

 

1) We have a lot of members in the USA

 

2) Almost all our members are affected by US regulation either here on Songstuff, or more likely on a site hosted in the USA. My interest in this topic is to get to the bottom of the topic, not to grind a personal axe as you seem to infer

 

3) For members based in other jurisdictions, resentment of the USA or it's domination of the business world does not change the legal ramifications of distributing music within the USA.

 

If you believe David to be wrong then by all means debate the point, point to rulings, other discussions... your response does nothing to recommend your viewpoint whatsoever.

[john]

In summary, in common terms, mandatory deposits aside (which as far as i see it, do not apply to Songstuff directly):

 

No matter where your music is made available, or where you are based, posting your songs on Songstuff and other forums, blogs etc is a useful chain of evidence when it comes to proof of authorship and / or proof of ownership. This is useful if you are ever in the unfortunate position of having to prove your ownership or authorship.

 

If you are based in the UK or in many other countries posting on Songstuff IS publication of your work. This is NOT the case in the USA, or at least it is not clear cut as to whether posting on Songstuff is publication. (note: posting by Songstuff staff, for example as part of an article on the main site IS definitely publication, it is the self-publication of blogs and forum posts that is in question).

 

In the UK and many countries there is no need for registration of copyright. Copyright is automatically established on publication.

 

In the USA and some other countries (Check your country's intellectual property laws) you need to expressly register your songs to establish a copyright claim. This is done via the US Copyright Office. It costs $35 per song, or per collection. US citizens are supposed to do this.

 

For non-USA citizens, this is mainly where the debate above has occured. There is an agreement that registration should occur in order to pursue any claim through a US court (for any infringement that happens within the US jurisdiction). Where the debate seems to be is on whether you need to register your songs up front (prior to any infringement) or just prior to any claim.

 

My personal opinion on reading the information available and after discussing it here and elsewhere is that if you make your music available in the USA, to the US market, then you would be wise to register your music with the US copyright office. I am not a lawyer, it is my personal opinion. I am sure your local songwriter's society will be able to advise you appropriately.

[Dunlakin]

Wow, considering this was a question not to be asked, it sure has got some answers   

By the way thank you all

[john]

Lol. If nothing else you can perhaps see that the legal side, relating to the options available is not exactly straight forward. All of this contributes towards the never really being comfortable. The best you can be is reassured that you are in the same situation as as every other artist out there, at least in this regard and be advised to take sensible precautions to protect your works, one of which is actually to post them to forums such as this one.

[snabbu]

My reasons for stating posting to sonsgtuff is not publishing.

The question is only partially around what is public.

If you posted a lyric to the members only section that would not be public.

That is a private club where one can display work for peer evaluation and educational purposes.

There is no precedent for this that I have seen. Sound click you can not access files unless you are a member.

I am not sure about cloud but if that is the same then it is not public either it is a club you can join to hear independent music.

I don't know what the sign on here is but if it is as a guest rather than just free access without singing in as a guest. Then they are not the public either they are guests of the club. A legal opinion which came out of a moot at Sydney university about 5years ago, determined that posting lyrics to the usenet group Rec Music Makers Songwriting, with sound files in those days on sound click. Was not publishing, even though usenet is a public place. The reasons given were the intent of the poster. The intent was deemed to be for evaluation by ones peers. The fact that the work was being displayed in a public place for critique by peers makes it a public display.

Now a lot of lay people have problems reading acts of parliament. This is not a critisism. I have excised the relevant section (101 of the us copyright act, as that is what we are discussing) I have removed it separately here to make it better understood by lay persons.

What appears below is what is not publishing. I repeat Not Publishing.

It is a public display of the work. John put it simply that money has not changed hands. This is almost true in that the only exception is lending. Which sort of implies money would not Change hands. But for lending to be established there needs to be an agreement or a library type situation. So here is the relevant section of 101.

Quote

A public performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly†means— 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Unquote

The above describes what we do here. I say again posting songs to sonsgtuff whether in the public sector or the members only sector is not publishing in any Berne Treaty country on the planet.

Now in regard to the issue of registering an unpublished work that has been infringed. Dave posted this to indicate that this could not be done.

These are actions excluded from statutory damages.

Quote

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

Unquote.

In plain English this says if you start an action in the circuit court you can not get legal fees and statutory damages. I also know of a precedent where the judge threw the case out because it wasn't registered.

Consider this; the action will not be over an unpublished work. It would be over a work that has generated money, to generate money it must be published, refer to the definitions of publishing in Daves post.

Therefore a case of plagiarism will never be about an unpublished work.

My reading of Daves post as to the timelines for registration is this.

You have 90 days after the publication of the infringing work to register your work or if you were unaware of the infringement and 90 days have lapsed, you have 30days after you have been made aware of the plagiarism to register and preserve your rights.

In regard to the phono and copyright symbols. The sections quoted state that this provides evidence that plagiarism wasn't innocent.

I did not know this so that is something new. However this is not much as no plagiarism is innocent ignorance of the law is no excuse, as the law is copyright exists on fixation, the offender should be aware that his plagiarism is not innocent.

Understand the definitions of defences: innocent plagiarism "oh I thought it was commons or out of copyright "

Unintentional plagiarism "I can see that it's similar I must have heard it somewhere and subconsciously copied it."

An infringer will always claim Unintentional plagiarism, for two or three reasons, it genuinely was, he wants to preserve his reputation, he wants to avoid punitive or statutory damages. This defence is fairly successful. I have never seen punitive damages made in such a case. If there is one I'd like a link.

So in conclusion

Songs posted here are not published.

You can post register your song after it has been infringed unless you publish it then you have 90 days.

If your song is registered you can take an action and access the remedy of statutory penalties and costs.

Statutory penalties are not awarded in cases where unintentional plagiarism is established.

I have never seen a case where this defence was not used and accepted.

Finally the likelihood of this ever happening to someone here is minuscule.

Therefore in my considered opinion registering a song with The LOC prior to posting is not good value for money.

Registering your unpublished work with the LOC after your work has been infringed by a published work is essential if you want to proceed in the US.

Cheers

Gary

[john]

To go a few posts back Gary, it depends on where you are located exactly what the definition of "published" is. The definition in the UK differs from the USA differs from Australia. There is no catch all definition, I have certainly not made that claim in this thread , in fact if anything I have been looking to broaden my own understanding.

The member only area boards, or group only boards, or group private messages, or private messages... None of these areas are public and as such none of these areas would qualify as suitable as locations for publication in any jurisdiction I know of. In fact that was one of the reasons for creating the members only critique boards

Regarding the majority of the boards including the standard lyrics critique and song and recording critique boards, they are publicly accessible with no sign on needed. The same is true for the showcase board and other non critique based boards where music is shared and otherwise promoted to members and to the general public.

As far as the USA is concerned: posts in the private or club areas are not ""published". Posts elsewhere are unlikely to be considered published but I believe clarification is needed on exactly what constitutes publication in the form of a ruling (don't ask me exactly what August body lol). Reading the clause in question it is decidedly wooly. For example, does it differentiate between a blog post, a forum post, a forum post by a staff member, a site article, inclusion in our newsletter etc. my guess is yes.

So I reiterate mybest guess is that by US law a forum post would NOT constitute publication. By UK law, it would ( though I am happy to be corrected by a UK based lawyer who believes differently)

Ps I didn't think we were discussing only the USA, though it is an important case I grant you.

[snabbu]

Hi John

 

Making a song available in an electronic retrieval system means it's published in the UK. So it is my understanding that yes it depends on where you are domicile or your co writer is domicile. So the song I just did with John Knight is published because he is in England.

 

In Australia the work is not published unless it is released to the public. So works on membership sites are not published.

 

Having said that the published status has no bearing on your rights in the UK or Australia as we do not have mandatory registration prior to court action.

 

In australia as well as the seize and destruct remedies, and recovery of profits. If the court thinks the violation is blatant or if the court has had a few recent cases and wants to send a message they can apply extra punitive damages.

 

This differs from the US where the plaintiff can elect to take statutory relief of up to K$30 or a book of profits. This is different from the punitive statutory award which can not be less than $200 nor more than $150,000 for willful infringement. So you have the money or the box option. But only if you are registered of course.

 

I cant find in the english stuff anywhere where it discriminates between public and private electronic retrieval systems. 

 

I agree entirely with your post leaving only the english issue which seems strange to me. We had this debate six years ago on RMMS and Richard Wilcox a UK music expert contributed that posting on sound-click was not publishing because it was members only. I am sure he had references but I can not find them.

 

Probably you know those sites like plain folks etc. are US based and the posts on there would not be publishing under the US definition.

 

Cheers

 

Gary

[john]

Just on the issue of what constitutes publication in the USA, according to this Law Professor specializing in Entertainments Law in the USA:

 

"Posting a new recording or video to YouTube will constitute publication."

 

Here is the original article:

 

http://www.gcglaw.com/resources/entertainment/music-copyright.html

 

This is exactly why I say the law in the USA needs clarification. There is no difference, for example, between a user posting a video or audio file here or on YouTube (leaving aside intent, which is booard specific) as both have agreed to certain copyright permissions regarding content they post.

[john]

Just to be clear, posting here is member only, but viewing (and therefor distribution) on most of the boards, including the standard critique boards, is not member only. It requires absolutely no log in and no special software. It is entirely public in nature.

[john]

Muddy waters indeed lol

[snabbu]

That article was very interesting particularly as performing a song live on TV is said to not be publishing.

Why is performing a song live on you tube different. Maybe because TV is like a one of thing.

I see he confirms that there is no advantage in registering a song prior to publication.

It doesn't matter if the public can see a display of a work that is shown for critique.

What would be helpful would be to get one of these guys to give an opinion.

And it in the muddy waters where the legal sharks do their best business.

Cheers

Gary

[snabbu]

Aha paid advertising on you YouTube streams money has changed hands. That is probably it.

I have half a mind to write to John Garon and see if I can get him to do an article on exactly what we do here posting for critique and discussion.

Cheers

Gary

[Kel]

I'm not going to weigh in at all on the register or not debate. However, and I will stand corrected if I am wrong, the US Copyright Registration fee of $35 is for one or up to 14 songs. (I don't know why 14, but 14 it is [i believe]) which makes registering and much more financially attractive thing to do, than paying $35 per song before doing anything.

 

With "ripping" software available freely on the net, it may be argued that simply being available to be streamed also makes it published even if illegally. That would need to be tested of course. Until something is tested, it is purely one academic opinion versus another.

 

So, for my money, $35 for 14 songs is $2.50 per song. While I don't look to register every song I post here for critique, competition, showcase etc, if I were pitching them, or submitting them to "open" competitions, I would be investing that $2.50 per song for sure.

 

What others do, is up to them.

 

Kel

[john]

Hey Kel, yep, that is the "collection" aspect I mentioned. Like you I am not sure wy there is a limit of 14 placed upon it, especially as the only other US restriction I know of in this area is that relating to the number of paid tracks on an album, 10. That is why so many American Albums have only the 10 tracks. I digress