Is Copyright Registration Necessary? (Part 1)

I hear this question all the time. A songwriter asks, “Do I need to register my song to get copyright protection?”, and then another writer will give their misinformed opinion. Here is my answer, in simple, black and white:

Registering a copyright with the U.S. Copyright Office does not provide federal copyright protection to the song.

That is not my opinion. That is a fact. Unfortunately, it is a fact that most songwriters, and many publishers, don’t get. There is a difference between “securing copyright protection” and “registering the copyright” of a song. These are two distinct events.

Before the Copyright Act of 1976, a song obtained federal statutory copyright protection only after the song was both published and had a notice of copyright affixed to it. (If no notice was affixed to the song which was “published” prior to January 1, 1978, then there was no copyright protection, and the song was considered public domain). However, the Copyright Act of 1976 changed that by stating that federal statutory copyright protection is obtained as soon as a song is fixed in any “tangible medium of expression”. [Section 102(a)]. No publishing of the work is necessary; no accompanying copyright notice is necessary; and no registration of the copyright is necessary. This means that your song is fully protected by federal copyright law the moment you write it on a napkin, record it on your smart phone, or any other means in which you put it into a tangible form. Period. That’s all it takes.

With this copyright protection, the owner now has the full and exclusive rights to reproduce the song, prepare derivative works, distribute, display, or publicly perform the song, and to give (or deny) permission to others to do any of those activities. (This includes the ability to prevent anyone from using the song under a compulsory license, which we’ll get to later).

So what does the act of registering a copyright in the U.S. Copyright Office provide? For one, it creates a public record that you claim you wrote this song as of a certain date. But the $35.00 to $65.00 filing fee per registration (depending on whether you file electronically or by paper), can be expensive, especially for developing writers who may write multiple songs per week with less likelihood of earning royalties. Remember, the song already has full copyright protection. The goal is to generate proof that this is your original work as of the date it was created without having to pay the prohibitive registration fees.

If you affix the song in some tangible medium and then put it away on a shelf somewhere for fear that someone might steal all or parts of it, then you may have a tougher time in proving that the song was created by you and actually existed as of the date that you wrote it. You want to do certain things to stack the odds in your favor that you can successfully prove it is yours. Rather than hide the song, you should make it known. The more people you play it for, the more people you create as “witnesses” to the fact that this is your song. Some people suggest mailing the song to yourself and receiving a postmark showing the date on the unopened package. That’s fine. Some will perform it and record it with a date stamp. Also good. Some may store it on a computer or in an on-line storage locker with a date. Any way you can show that the song existed, written by you, with a date attached, will provide a certain level of proof that you are the copyright owner.

As we’ve gone over, the act of registering has nothing to do with copyright protection. In fact, in Section 408(a), the law clearly states, “Such registration is not a condition of copyright protection.” So to answer the first question, “Is copyright registration necessary for copyright protection”? The answer is a simple “no”.

The act of registering the song also does not prevent the unlawful activity of copying or infringing on the song. So why would anyone need to register the copyright with the copyright office? Well, the registration does provide the copyright owner with certain abilities and advantages in defending the copyright, and also in receiving certain royalties, which are both important. We’ll cover those advantages in Part 2 next week.

John Barker
Clearbox Rights

“Get your facts first, then you can distort them as you please.” – Samuel Clemens

© 2012 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

5 Comments

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5 responses to “Is Copyright Registration Necessary? (Part 1)

  1. mike harland

    I like what you are doing here. When I speak
    , particularly on college campuses, this is the prevailing question. I will definitely refer to your blog in the future. Thanks John!

  2. Very helpful for beginning songwriters John, I am asked this very question constantly.

  3. Nice clear explanation, John. It might be noted that most publishers don’t bother to register copyrights until the song is recorded and shows some real promise of earning royalties. Pardon the shameless self promotion, but the MyWerx platform is a dirt cheap way to be SURE your date of authorship is established. Thanks for the invitation. You can check out some of my thoughts on copyright and songwriting at two new sites: thecopyrightforum.com and stevebogard.com. Best, Steve

  4. Good stuff John.

    I’d agree registration is not technically required. However, in practice it is extremely important for proving “chain of title” if the asset is ever transferred. Also, it helps memorializes some mile-markers surrounding termination and recapture issues. We’ve purchased some foreign copyrights where registration was not required, and perfecting chain-of-title was messy and expensive after the fact.

    Happy New Year. Scott

    • Yes, agreed Scott, great points by John and you.

      I would clarify “fully” in this sentence in the blog though…. “This means that your song is fully protected by federal copyright law the moment you write it on a napkin, record it on your smart phone, or any other means in which you put it into a tangible form.”

      I would imagine, in Part 2 of this blog article that John will be discussing the advantages of a registrant getting or be able to assert statutory damages if the song is registered with the U. S. Copyright Office prior to an infringement. Registration, I think, gives you “full” protection to clarify.

      One thing that should be eventually discussed are the “non-protections” within the Copyright Code and the CRB rulings, no matter which side of the fence that you are on… For example, is one song worth the same as another song? Should every song’s PDD rate be 9.1 cents and every song’s ringtone rate be 24 cents? Will there every be a ruling on homogenized synchronization rates? Next, if “access” is proven by a plaintiff in a copyright infringement case, is it fair now with all of the ability to “access” songs, that a defendant should bear the burden of proving that they did not copy the song that they had “access” to? …and should losing parties be “required” to pay attorneys fees? Food for thought on the non-protections within the code that need to be addressed which are well outside of the digital licensing issues that seem to permeate the news lately.

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