This Article Originally Published May 1998


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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