Copyright basics: exclusive rights, licensing lingo, and more

by Keith Hatschek on March 24, 2011 · 49 comments

in Business Forum,Fast Forward

It makes sense to protect and copyright a song if you hope to profit from its recording and public performance – but how do music copyrights work?

Copyright a song
So you’ve written a new song. It may have the potential to be a hit, but one thing is certain: it makes sense to properly protect and copyright a song if you hope to profit from its recording and public performance. How do music copyrights work? What is required to have ownership of your song’s copyright? Why should you register it with the Library of Congress? What are some of the common music licenses that generate income for songwriters?

What is a copyright?
According to attorney Don Passman’s authoritative book, All You Need to Know About the Music Business, a copyright is a "limited duration monopoly." When the founding fathers first established copyright in intellectual property, the term of that exclusive control was fourteen years. Since that time, copyright duration has been extended, to the point that today, once you properly register your song’s copyright, you and your heirs will have exclusive control of it for your own life, plus seventy more years.

While most songwriters or their publishers copyright a song and register the copyright with the Library of Congress (LOC), due to the way the law is written, a copyright actually exists the moment you fix your song in any tangible medium. So by recording it, writing out a lead sheet, or simply typing out the lyrics and printing them, you have created a tangible copy and at that moment in time, your song is protected by copyright.

So why bother to register your new song with the Library of Congress? Because until such time as it is officially registered as a new work with the LOC, you have some, but not all of the various protections that copyright law provides.

The first and most important result of registering your song with the LOC is that a permanent and unequivocal date of copyright registration is established. Should your song be used without your consent, this date will be used by a court of law to affirm that the use or unauthorized adaptation occurred after you registered your song. Such unauthorized use is commonly referred to as an "infringement."

Once your song has been registered, the full weight of copyright law can be used to protect your song, should it be used unlawfully. Penalties for using a copyrighted work without permission can be substantial, running anywhere between $750 and $30,000 for each infringed work. If a defendant willfully infringed, that is, he or she knew your song was protected by copyright, statutory damages can rise to $150,000 per infringed work.

One more benefit of registering your song is that if you have a valid LOC registration for your song and the court decides in your favor, the infringing party will likely have to pay your legal fees in addition to whatever statutory damages are required.

A copyright owner’s five exclusive rights
Once you have a song that you’ve registered with the LOC, you have the foundation to exploit your song to earn money. Song copyright owners enjoy the same five exclusive rights that any author of a novel, screenplay, painting, poem, or other intellectual work has. These include the right to exclusively:

1. Reproduce the work
2. Distribute the work
3. Perform the work in public
4. Allow a derivative work to be made
5. Display the work in public (applies mostly to visual media and artwork)

Anyone making unauthorized copies without a copyright owner’s permission, distributing unauthorized copies, using a sample without permission, or allowing performance of the work in public without proper payment of public performance royalties is in violation of one or more of these exclusive rights.

In practice, songwriters will often assign their song’s copyright to a music publisher in order to maximize the revenue opportunities. It then becomes the job of the publisher to develop as many licensed uses of your song as possible. Such uses may include cover versions of your song; placements in TV, film, and video games; use of your song in a commercial, greeting card, or on a compilation album. In exchange, the songwriter will normally share the revenue 50-50 with the publisher. Whenever your song is performed on radio or TV, it generates a public performance royalty that the three U.S. Performing Rights Organizations (PROs) – ASCAP, BMI, SESAC – monitor and then collect a royalty on the behalf of the songwriter and publisher. Each writer may only affiliate with one of the PROs.

Song vs. Master copyrights
Prior to 1972, the recording of your song was not protected by copyright, although the underlying musical ideas, usually represented by the lyrics and music that made up your song, were covered. At that time, Congress changed the law to extend copyright protection to sound recordings. This meant that for artists signed to one of the major record labels, the sound recordings they made in the studio usually became the property of the record label, based on the fact that in almost all cases, the label bankrolled these master recordings.

Record labels quickly realized these master rights represented a new stream of royalty income and began to exploit them. When you hear an original recording of a Motown classic such as "I Heard It Through the Grapevine" by Marvin Gaye in a motion picture, Motown/Universal has granted a master license to the filmmaker, while the songwriter’s publishing company, in this case Stone Agate/EMI Music Publishing, granted a song license to use the music in the film. So in this way, a recording of a song has two copyrights simultaneously existing: one in the underlying song, a second in the master recording of that song.

For the DIY band that has released its own album, they can simply send in a copy of their finished album to the LOC and register both the songs and the master recordings to receive full protection. Then, if a filmmaker wishing to use their song were to contact the band, they would be in a position to request a license fee for both the song use AND the master use, assuming the budget allowed for such fees. In practice, the filmmaker might have a limited budget, but remember that if you own your song and your master recording, you actually hold two distinct copyrights.

Licensing lingo
In the world of music licensing, there are various types of music licenses, each of which is referred to by one of more common terms. It makes sense to learn these basic terms so that if you are speaking with a music publisher or anyone wishing to use one of your songs or master recordings you are starting from a common point. Here are four of the more common terms used in music licensing.

Mechanical License. This is the permission to use your song to record, manufacture, and distribute a new sound recording of your song. Even if you are recording your own song for a record label, under the terms of your contract, the label will need to secure a mechanical license before making the records and offering the song as a download. (Yes, downloads count as a record and as such, the publisher or songwriter must give advance permission to distribute or sell a song online.) Mechanicals, as they are frequently referred to, are audio-only licenses.

Synchronization License. Any use of your song in support of a visual medium is a synchronization (or synch, for short) license. When you hear a song used on a TV show or motion picture, a synch license was secured to pay the publisher for that use. Depending on the importance of the song in the context of the film or TV series, such licenses may generate tens of thousands of dollars shared by the publisher and writer.

Blanket License. Ever wonder if Queen earns a royalty when you hear "Bohemian Rhapsody" blaring over the sound system at your local bowling alley on Rock ‘n’ Bowl night? They do. The three PROs typically secure annual agreements with any business or venue that features music playback or performance as part of its operations. The cost for such blanket licenses varies depending on the size of the venue and typical audience size. For example, the blanket license fees paid by Madison Square Garden to use music during a NBA basketball game will be proportionally higher than your local bowling alley pays. But both types of venues help add to the songwriter and publisher’s revenue streams when a song is frequently played.

Master License. This is the license needed to use a master sound recording in any commercial setting. Record labels often control most masters performed by top artists as they invested the money to record them in the first place. However, more bands are deciding to take the totally independent route, which will often result in the band retaining the master rights for their sound recordings. When such a band gains enough notoriety to attract the interest of a TV or film music supervisor, they may be in a position to profit from granting a master license and a song license if they also wrote the song in question.

Note: This article does not offer a complete explanation of music copyright and licensing matters. It’s best to get the advice of an experienced entertainment attorney or music licensing expert before entering into any binding music license agreement.

Image via ShutterStock.com.

Keith Hatschek is a regular contributor to Disc Makers Echoes blog and directs the Music Management Program at University of the Pacific. He’s also written two music industry books, How to Get a Job in the Music Industry and The Golden Moment: Recording Secrets from the Pros.

Story Links
ASCAP: American Society of Composers, Authors and Publishers
BMI: Broadcast Music, Inc
SESAC
Musicians Business Dictionary: a helpful glossary of music business terms and definitions

Book Recommendations
All You Need to Know About the Music Business – by Don Passman.
Now in its 7th edition (2009), this book is a classic that every songwriter or working musician should have on his or her bookshelf.

Music, Money & Success – by Jeff and Todd Brabec.
In its 6th edition (2008), this book clearly explains music licensing and publishing from top to bottom. Well worth the investment for the casual or serious songwriter.

Kohn on Music Licensing – by Al Kohn
The granddaddy of music licensing books, written by the dean of music licensing attorneys. Now in its 4th edition (2009), this 1,800-page behemoth costs over $300, but covers just about every known music licensing situation.

Professional 
songwriters offer advice on how to write a great song

Read more
Retaining Your Master Rights Is Smart Business
Is Your Project Ready For CD Manufacturing? A DIY Album Release Checklist
Get Paid When You Get Played
Intro to music licenses
Making Money With Music Licensing – Part I: Copyrights and Revenue

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{ 5 trackbacks }

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{ 44 comments… read them below or add one }

James Kleist March 26, 2011 at 3:41 pm

Good Day,

I would like to have produces 100 CDs for a test run. I will need the mechanicals for 26 songs. How much would your service cost me for these 100 CDs only? I do have the song writers and the major performers names.
Thank you,

James Kleist

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Disc Makers March 28, 2011 at 8:06 am

Hi James-
You can get a custom quote for your CD project here: http://www.discmakers.com/selfservicequoterbeta/

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James Kleist March 26, 2011 at 3:44 pm

I did mean to use the word “produced”.

Many thanks

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James Kleist March 26, 2011 at 3:44 pm

ok to go!

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spike penetrator March 29, 2011 at 1:33 pm

Very good article. For mechanical rights to cover songs you are releasing on a CD, contact Harry Fox agency. http://www.harryfox.com . They are the folks you go through fro mechanical licensing. Hopefully, this helps you with your project. Their rates are fairly reasonable for small runs.

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Ralph March 29, 2011 at 7:06 pm

Great article! Very informative and easy to understand.

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Dillon March 29, 2011 at 9:31 pm

How much does it initially cost to get work copyrighted such as songs and album art?

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Bruce March 30, 2011 at 7:19 am

it barley cost nothing Dillon. you can go http://www.copyright.gov and get your copyrights online. But if you want to get your copyright faster it will cost 780 dollars. it works i paid and got my copyrights in less then a week.

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Jeremy March 30, 2011 at 10:03 am

Paper filing (which I would not recommend since it took them over 1.5 years to complete my last copyright registration) costs $65. To electronically file (which takes them about 1-3 months to process) is $35.

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Jeremy March 30, 2011 at 10:04 am

Also thought I’d mention that you can copyright more than one song at a time. I usually do an entire album, that way I don’t have to pay $35 for each song.

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Gael MacGregor March 12, 2014 at 1:20 am

While you can do multiple songs in one filing (something that works well when you’re in a budget crunch), remember that if you do anything with a particular song in that filing — such as revising it, or signing a publishing contract for that one song, a revised copyright form must be filed, removing the song from the original filing, then a new form filed for the individual work.

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Tom-Intergalactic Express March 30, 2011 at 7:45 pm

My Engineer suggested recording about 70 song on a CD and then doing the $35 electronic filing.

We are busily doing that.

Rock-On

Tom-Intergalactic Express

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DJ Park March 31, 2011 at 10:50 am

I’m interested in how I compensate the composer if I do an arrangement. Do I need the composer’s approval before I do an arrangement? What if an organization (such as a religious organization) has copyrighted the piece after the original composer’s copyright expired?

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Jim Tye April 2, 2011 at 6:35 am

That was very informative. It has confirmed the answers to a lot of questions I had about copyrights.
Now I can continue in the direction I was going in.
Thanks.

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James April 4, 2011 at 9:53 pm

I have a question. I am busily learning how to use my new recording gear and a friend asked me if I could come and record his band at a live gig. I would love to do it, as I could definitely use the practice with my new equipment. However, I fear that he may take the CD that I make for him and duplicate it to sell. These would be all cover songs, so I’m concerned about my exposure. If all I do is record his band live, and they do whatever they want with the final CD, what legal position does that put me in? Am I supposed to pay for a license to record what they do even though I’m not charging anything?

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Gael MacGregor March 12, 2014 at 1:40 am

Get a one-page agreement with your pal that clearly states your involvement — that you are an “artist [engineer] for hire” (even if it’s for no pay — a “gratis” situation). It should also state that you have no rights in and to the recorded works or the compositions embodied in the masters.

You should also have some sort of wording that indicates that your contributions to the work don’t violate anyone else’s rights — AND that the Company (or your pal) warrants the same, i.e.:

“Artist agrees that, to the best of Artist’s knowledge, none of the Artist’s contributions to the Sound Recordings infringe or violate the right[s] of any other party. Artist acknowledges that she/he is eighteen [18] years or older and has the authority to enter into this agreement and render services to Company. Company warrants and represents that Company’s use of the Sound Recordings and Compositions embodied in such Sound Recordings will not breach the rights of any party, including, without limitation, any record company or publisher with whom Artist may be affiliated.”

You’re not releasing the finished product, so have no obligation. You are an independent contractor, not an employee or partner or anything else. Just make sure that if you DO receive compensation, you note it in your tax returns. For most filers, anything over $600 paid via any one source also requires that a 1099 form be filed.

And a reminder (from my attorney): All statements above are my opinions and not intended as legal advice or counsel. No warranty or representation is made as to the accuracy of these statements. You should hire an attorney before entering into any agreement or contract. So there!

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oxana April 6, 2011 at 1:42 pm

Very good. See also: how many rights can you lose? at villamusicrights.blogspot.com

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Anne April 15, 2011 at 9:16 am

I just wanted to disagree with the poster who recommended Harry Fox (although obviously this is for mechanical licenses – not copyrights). They only handle some material, and I’ve heard they are not helpful if you’re ordering for a small pressing. I have only heard good things about the customer service at Limelight by Rightsflow – and I know they can get mechanical licenses for literally ANY song.

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Anonymous December 29, 2011 at 3:01 pm

Limelight IS going through Harry Fox!  If you go to HFA directly, you just enter the amount you intend to press, and they do the calculations for you.  HFA is perfectly fine for small pressings.  I found it very easy, Limelight doesn’t make it any easier, they just take an extra fee on top to do what you can do yourself.

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Gael MacGregor March 12, 2014 at 1:16 am

Mechanical licenses are compulsory licenses, meaning that anyone can record any song they want to… BUT if they intend to release a copyright protected composition (other than their own creation) in any form (physical product or digital or otherwise), they need to pay the statutory rate to the publisher or publisher’s representative. The current statutory rate is 0.0910 cents per song (five minutes or less in duration) per unit (for 1,000 copies, you’d be paying $91.00 plus a $16.00 processing fee to Harry Fox).

IF Harry Fox doesn’t rep the publisher for a song, they will provide contact info for who DOES. They are very easy to work with, and you can process your mechanical license completely online with ease. They handle a license for 100 units as promptly and simply as for a 25K pressing. I’ve dealt with them numerous times for multiple clients and they’ve been terrific each time. Any questions I’ve had were answered promptly, and I’ve never had a license delayed because of a small run.

A mechanical license cannot be denied. All you have to do is pay the required fee — based on however many CDs or PDDs you plan to have printed. It should be noted that even if you never sell a copy of your CD, the amount you’ve paid to the publisher stands — no refunds.

My advice is to always go to Harry Fox FIRST. If they don’t rep the song, they will give you contact info for who does, so it cuts down on your research time.

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Drop_dwg June 8, 2011 at 12:44 am

this very…very true! get your music and lyrics protected the proper way. Do not let anyone tell you….your music and everything is protected by there computer or studio backup……ITS A LIE!

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Gael MacGregor March 12, 2014 at 1:47 am

According to the U.S. Copyright Office: “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device… In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work… Registered works may be eligible for statutory damages and attorney’s fees in successful litigation… If registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. ”

So your work IS protected upon its creation in tangible form (sheet music, recording, whatever)… HOWEVER, you must have a copyright filed in order to bring a lawsuit for copyright infringement or other litigation.

There is no substitute — although registering the work with your performance rights organization is also good to do. Even though you’re only registering a title with your PRO — and copyright is based on the work itself (not any given title) — it will also show the PRO registration and its date. This means you could possibly settle any copyright dispute outside of court by having these paper trails.

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Erik Heller July 17, 2011 at 7:25 pm

In the years past, I sent a copy of my work (songs) to the L.O.C., and I was under the impression that “I” was covered, and safe. What is the latest way to safe guard any music that I record? Times have changed, and I am now returning to recording after many years. Erik Heller 

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MYSTRO September 15, 2011 at 2:50 pm

Great advise from the counsel however I have a question.

What about sound libraries from SAMPLE LIBRARY COMPANIES.

One company that I know of says when you purchase tracks/samples etc from them you have purchased that license and can do what ever you wish with the library as long as you do not take their loops and sell them as your own sample library.

Further this particular company says If you got rich on it that you would owe no one because you purchased a legal copy of the samples, and that you can even use and re arrange the song as you please.

The problem with this is when I arrange a track or sample I make it my own, it becomes my arrangement that took that track to it’s pinnacle level.

Should I know be a able to request a derivative work copyright protection for that work? its only fair although I may not parse own the track or sample, that sample to me is no more than purchasing a    Fender BASS. 

Fender cant come back on me because I purchased the Bass and got a hit record with it, but they can challenge me If i design a Bass with the same electronic and design scheme and name it Richys Fender Bass.

Radio Stations are asking me for the copyright papers to my music but the sample companies told me to present them with a copy of your legal sample paperwork license and thats it.

Is that really It? CAN ANY BODY ANSWER MY QUESTION.

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Anonymous December 29, 2011 at 2:59 pm

I am sorry to see that the link for mechanical license goes to Limelight and not Harry Fox Agency.  Limelight is a middle-man between the recording artist and Harry Fox.  They get a fee for something that will take you five or ten minutes to do for most songs, right on Harry Fox’s website.  For songs that are not covered by HFA, a little skillful googling usually does the trick.  I found the widow of a songwriter who had rights to a songs not licensed through HFA and she happily agreed to take a check directly from me. 

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gilbertorodriguezramirez March 9, 2014 at 7:02 pm

could you please send me informacion to my email thank you.

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Ernest O' Hair March 11, 2014 at 1:43 pm

I’m trying to get some of my music Only charts and media And I’m looking for help in any way I can get it Which is the reason why I’m looking toward Dis makers It seems all the information That is being sent to me Seems to be good So if you please Sir standing helping hand please. Thank you in advance.
GERONIMO

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Dawkins March 11, 2014 at 2:03 pm

What about copyright outside of the United States?
I am from the United Kingdom. Can I still register with the Library of Congress?

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Gael MacGregor March 12, 2014 at 1:51 am

From the U.S. Copyright Office: “Any work that is protected by U.S. copyright law can be registered. This includes many works of foreign origin. All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which we have a copyright treaty or that are created by a citizen or domiciliary of a country with which we have a copyright treaty are also protected and may therefore be registered with the U.S. Copyright Office. See Circular 38a, International Copyright Relations of the United States, for the status of specific countries.”

http://www.copyright.gov/help/faq/faq-who.html (and you can download Circular 38a from this location)

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Mr. William C. Bushey Or Billy Chas. Bushey. March 11, 2014 at 2:46 pm

Dear Sir Or To Whom It May Concern;
My name is Mr. William C. Bushey. My singing and performing name is Billy Chas. Bushey. I am a Songwriter, Singer, and a Musician, I write Country Songs, Gospel Songs, Contemporary Songs, and one Blues Songs. I have performed from 1987 to 2011. And I am still singing when I can. In 2010 I did perform at a outdoor concert in Chicago. and sang some of my songs that I wrote. I also Audition in DollyWood in 2010. I have sent some of my songs to the Copyright Office in Washington, DC. also. But who every hears my songs, They can just change
my layers on my songs to try to get a hit. So could you let me know more about it ok.

Mr. William C. Bushey.
Or
Billy Chas. Bushey.
E- Mail Billychasbush40@aol.com
Phone 1- ( 218 ) 722-7315
March / 11 / 2014
Time 3: 45 P. M.

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Ron March 11, 2014 at 3:09 pm

Dear Friends,

And what of the NSA copying our ‘registered’ works (and unregistered works.. If we collaborate with others over the net i.e. we email songs in process)? How does this all fit in? Is the NSA breaking copyright laws?

I have wondered about this.

Thanks.. Ron

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Hauai March 11, 2014 at 4:05 pm

Hi,
I have been copywriting my songs with Legal Zoom. The way they work the song submissions is to bundle all songs and use a bundle name. This is as opposed to copywriting each song title by itself. Will this cause problems in the future ?

Thanks.

Reply

Hauai March 11, 2014 at 4:07 pm

Hi,
I have been copywriting my songs with Legal Zoom. The way they work the song submissions is to bundle all songs and use a bundle name. This is as opposed to copywriting each song title by itself. Will this cause problems in the future ?
Sorry, my email name has been corrected.
Thanks.

Reply

Maureen Garr March 11, 2014 at 5:54 pm

Very, very informative and a good one too especially about the Master tapes and copyright laws.Thanks.

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Dave Peaceman March 11, 2014 at 6:41 pm

I found this article to be very informative. Thank you very much. Here is my question. What is exactly is the procedure to register my material with the LOC? By the word ‘material’ I mean written and recorded music. I have been writing for years, but have yet to copy write any of it. Follish I know. but I don’t know how to getit all copy written and registered with the LOC. Please help. Thank you.
PEACE FOR PEACE
Dave Peaceman

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Gael MacGregor March 12, 2014 at 1:26 am

All the forms and instructions for filing can be found here: http://www.copyright.gov/forms/

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Gael MacGregor March 12, 2014 at 1:25 am

It should be noted that with Blanket Licenses, the pro rata royalties paid to the songwriters and publishers are rarely paid to the “little guy”. Since most venues aren’t required to file anything like the cue sheets necessary for film/TV uses, there’s no proof for many of the actual uses. So what do the PROs do? They give the money to those they call their “top performers” (kinda like ASCAP’s infamous “survey” guesstimates)… Meaning that the big guys who probably don’t need the money, get paid — regardless of whether or not their specific works were in the rotation — while the indie artists/composer whose works may have been heard repeatedly, receives little or nothing.

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HC March 13, 2014 at 3:28 pm

well said! is BMI better than this for the non-top performer? the ASCAP “surveys” are horrible for the little guy! we

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HC March 13, 2014 at 3:30 pm

….have been getting the huge ZERO from ASCAP for too long and are looking for an alternative.

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James March 12, 2014 at 2:51 am

When I first started recording my originals in the 80′s, I had very little info on copyrights, & even less money. So, on the advise of a friend, I did a “Poor mans copyright” by putting a cassette tape in a small bubble mailer, addressing it to myself, & took it to the post office. I would also include a track list & credits. I even had my neighbor who was a notary, stamp the credit & track list sheet. I wouldn’t actually have it mailed, but for a few cent’s, they would stamp the date several times on the package, including a couple of times on the seal.

Just wondering, since I’ve never really heard if this actually works, was that a good way to do things back then for a kid just starting out? Would this actually hold up? Would it work today?

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Dave March 12, 2014 at 2:15 pm

I would love to see someone answer the “poor man’s copyright” question above. Gael???

Does this work in court?

Thanks
Dave

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Jimmi RITZ Reitzler March 12, 2014 at 7:12 pm

I’m so happy you put this up-I tell people all the time to sent in copyrights to cover your self–Jimmi RITZ Reitzler

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Jodi Hudson March 12, 2014 at 9:43 pm

How do I go about getting copyright permission for my parodies?

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http://evan-norman.blogspot.com March 30, 2014 at 2:11 am

The added time you spend sopping up other people’s ideas, the a smaller amount of your own you are generating, developing or executing.
Two away from three pathological gamblers commit illegal acts in
order to pay for gambling-related debts. When you judge yourself for virtually any failure, you create an emptiness inside that then wants
to get filled.

Reply

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