(And Those Who Love Them)
By Barry Chase, Esq., ChaseLawyers Entertainment Attorneys
This is the first of a series of posts about how the United States Copyright Act impacts your life and work as a musical, visual, literary or any other kind of artist, whether you want it to or not.
Before getting into the actual nitty-gritty of the law, we must warn you that every general principle of Copyright Law has one or more exceptions; and there are sometimes even exceptions to the exceptions.
This is the natural result of millions of cases, some of which just don’t fit neatly into fact situations which the writers of Copyright Law have been able to imagine beforehand. So judges had to improvise. (More in a future column about the hot, though bogus, political issue of whether judges are required just to “interpret” the law or actually “make” law.) What’s important for you to realize, though, is that despite the popular culture’s fascination with the exceptions, they are very rare statistically…about as rare as anyone you know personally winning Lotto this week. So we’re going to simplify the law; otherwise this column would belong in a boring law review article.
First, a few basic points:
? The Copyright Act is a federal law, and it generally overrules (“pre-empts” in legalese) any state or local law that governs the same category of human transactions. So there is NO “Florida Copyright Law” or “California Copyright Law” to worry about. The Copyright Act under which we are all now living and working was enacted by Congress in 1976 and became effective on January 1, 1978. So any creative “work” created after January 1978 is automatically covered (more on what a “work” is later in this column).
? It is the United States Constitution that gave Congress authority to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (Quaint 18th-Century capitalization is in the original; and note that among the capitalized words are “Arts,” “Authors,” and “Writings.”) The first actual Copyright Act was enacted by Congress in 1790, and we’ve had one ever since.
? A “contract” between two willing parties, including a contract about copyright, is like a “private treaty.” You generally do not need any “official” blessing to enter into a contract with anyone else over eighteen years of age. The only time the government (in the form of a judge) gets involved is if one of the private parties thinks that the other is not living up to the promises that he/she made.
? As much as the mere word “contract” may put you to sleep from boredom, the fact is that, without the enforcement of contracts, no civilized commercial culture could long endure, because we couldn’t do business with one another confidently without the threat of a judge’s coercive power (i.e., you could go to jail for contempt if you’re ordered to comply and ignore the judge’s order).
? Contrary to popular opinion, a contract does NOT necessarily need to be written in order to be valid – but, if it is about Copyright, then most often it MUST BE IN WRITING TO BE ENFORCEABLE.
Now, on to some of what we usually tell clients at ChaseLawyers in our “Initial Consultation” (currently $350 for them, free to you):
First, the copyright in a “work” belongs to the creator of that work; and it does so instantaneously upon (a) the creation of that work and (b) its being “fixed in any tangible medium of expression, now known or later developed.” One major exception: If an artist is working “full-time” for another person or company, then anything that the artist creates that is “within the scope” of his/her employment responsibilities belongs not to the artist but to the “full-time” employer. What, you reasonably ask, does “full-time” mean in this context? Well, if taxes are being withheld and FICA (a social security contribution) is being paid by the employer, then you are most likely a full-time employee for copyright purposes.
So what is a “work?” There is a list of categories in the Copyright Act, which includes (1) “literary works,” (2) “musical works, including any accompanying words,” (3) “dramatic works,” (4) “pantomimes and choreographic works,” (5) “pictorial, graphic, and sculptural works,” (6) “motion pictures and other audiovisual works,” (7) “sound recordings” and (8) “architectural works.”
What does “fixed in any tangible medium of expression” mean? Well, what we always say to clients is that if you’re just singing your great new song in the shower, you haven’t created any new intellectual property yet. It becomes your “property” only after you write it down or record it on tape so that someone else can “perceive” it.
Second, the copyright is created the moment the “work” is created and “fixed.” There is no requirement that you file anything with the government for you to own this copyright, although there are a LOT of legal advantages to doing do as soon as possible, and it generally costs only $35 to register the work online at www.copyright.gov. A non-registered copyright is known as a “common-law” copyright, meaning that it is protected by thousands of judge-made decisions during the last 800 years or so of Anglo-American jurisprudence.
Third, and maybe most important to a lot of artists who have lost control – or think they have lost control -- of their creations: ALL TRANSFERS OF OWNERSHIP (including “exclusive” licenses) MUST BE IN WRITING. This rule in Section 204 of the Copyright Act is very strictly enforced by the courts. If you are being told that you “sold” or “released” the ownership rights in your work, but you never actually signed a paper saying so, then you almost surely have not transferred the work and you still own it – even if the would-be new owner has paid you a million, jillion dollars. For the business person dealing in copyrighted material (the word, by the way, is “copyrighted,” never “copywritten,” because it is the “right” to copy that we are talking about), this principle is crucial. If such a business person thinks that he or she owns the rights in a work just because he or she has paid for it, he’s mistaken. He/she must obtain a “work-for-hire” agreement or some other written document signed by the creator/owner. Otherwise, there has been no legal transfer of the work.