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by Donald S. Passman
The legal definition of a copyright is a "limited duration monopoly." Its
purpose (as stated in the U.S. Constitution, no less), is
to promote the progress of science and useful arts by giving
creators exclusive rights to their works for a while. As you
can imagine, if you created something and everybody immediately
had the right to use it without paying you, not very many
people would go through the trouble of creating anything (including
you and me).
What is copyrightable?
To be copyrightable, the work has to be original (not copied
from something else) and of sufficient materiality to constitute
a work. There's no specific test to cover this; it's decided
on a case-by-case basis. For example, the five notes played
by the spaceship in Close Encounters of the Third Kind are
copyrightable because of their originality, even though they're
just five notes.
How To Get A Copyright
Under United States Copyright Law, as soon as you make a "tangible
copy" of something, you have a copyright. Tangible simply
means something you can touch. If the work is a musical composition,
for example, it can be written down (if you write music, which
many creative people don't these days), or just sung or played
into a tape recorder. Once this tangible copy exists, you
have all the copyright you need.
Many people think you have to register in Washington to
get a copyright. Not true. There are some important rights
you get from registering, but securing a copyright isn't one
of them.
So it's that simple. If you sing a song in your head, no
matter how completely it's composed, you have no copyright;
if you write it down or record it, you have one. If you'd
like to take a few minutes right now and copyright something,
I'll wait.
What Are All These Rights You Get?
When you have a copyright, you get the following rights at
no extra charge. These are exclusive, which means that no
one can do these things without your permission. You get the
exclusive right to:
1. Reproduce the work
Keeping with a musical composition as an example, this means
that no one can record your composition, publish it as sheet
music, put it in a movie, or otherwise copy it.
2. Distribute copies of the work
Apart from the right to reproduce your song, there is a separate
right of distribution which you also control. Note the difference
between making a copy of the work (for example, recording
it, and manufacturing records of it), which is a use of the
copyright (it's a reproduction), and the distribution of this
copy (for example, selling records to the public), which is
another, separate right. One illustration of this would be
a record company that hires a plant to duplicate their cassettes.
The plant gets the right to reproduce the songs, but not the
right to distribute copies of them.
3. Perform the work "publicly"
With a song, this means playing it in nightclubs, on the radio,
on television, in amusement parks, supermarkets, elevators
(you know your career is either soaring or history when you
hear your song in an elevator), or anywhere else music is
heard publicly. It doesn't matter whether the performance
is by live musicians or a DJ playing records, you get to control
this right.
4. Make a derivative work
A derivative work is a creation based on another work. In
the music industry, an example is a parody lyric set to a
well-known song (like what Weird Al Yankovic does). The melody
may be a copyrighted original work (say "Gangster's Paradise"),
but with parody lyrics (like "Amish Paradise"), it constitutes
a new work. This new work is called a derivative work because
it's derived from the original. The concept is even easier
to see in the motion picture area. Any film made from a novel
is a derivative work (the novel is the original work). And
West Side Story is a derivative work based on Romeo and Juliet.
Anyway, you get the idea. (By the way, the original doesn't
have to be copyrighted. If it isn't, the only parts of the
derivative work that are protected are the newly created ones).
5. To display the work publicly
This really doesn't apply to music; it's for things like paintings
and statues, etc.
Donald Passman is a Los Angeles-based
music attorney with the firm of Gang, Tyre, Ramer & Brown.
Specializing in music business law for over 20 years, his
clients include major publishers, record companies, film companies,
managers, producers, songwriters, and artists such as REM,
Janet Jackson, Quincy Jones, Tina Turner and Green Day. On
a regular basis, we will be excerpting from Mr. Passman's
best-selling book, "All You Need To Know About The Music
Business."
From "All You Need To Know About The
Music Business" by Donald S. Passman. ©1991, 1994, 1997
by Donald S. Passman. Reprinted by permission of Simon & Schuster,
Inc.
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