Is Copyright Registration Necessary? (Part 3)

It is possible you could be missing certain royalties for your songs because you haven’t registered the copyright in the U.S. Copyright Office.

In Part 1, I answered the question, “Is copyright registration necessary for copyright protection”? The answer is a simple “no”. Copyright protection exists as soon as the song is put into any tangible form. In Part 2, I went over some of the advantages of registering your copyrights, which are 1) making a public record, 2) creating “prima facie evidence”, 3) the necessity in order to file an infringement suit, and 4) the ability to receive statutory damages and attorney’s fees. In this next and final Part 3 on registrations, I’ll address the ability, or lack thereof, to receive certain royalties for your copyrights.

The “Compulsory License” was first introduced in the Copyright Act of 1909, with the intent of making licenses more easily available for mechanical piano rolls, and the newly introduced phonorecord cylinders and discs. However, the practice throughout the years has been that most users of copyrights would negotiate a mechanical license, rather than jump through the numerous legal hoops defined in Section 115 necessary for such a compulsory license. (We’ll get into the details and terms of compulsory licenses in a later blog). The compulsory license was a little used clause for most of 100 years. In fact, Mary Beth Peters, the acting Register of Copyrights, testified to a subcommittee of Congress in 2004 that “Up to this day, very few notices of intention (for compulsory licenses) are filed with the Copyright Office”.

Then along came the increased activities of digital music delivery sites. With these digital providers attempting to clear millions of songs in order to launch their services, they began hiring “License Agents” to file for and administer compulsory licenses for their digital music offerings. They did this by having the License Agents send a “Notice of Intention” (NOI’s) of the use in order to comply with the compulsory license as defined in the Copyright Law.

However, a little noticed clause in Section 115(c)(1) says, “To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed.”

So, according to the law, even though your song has been published (which is a requirement before a compulsory license is available), and you may have earned significant income from your song, and even though your song may be well known and identified in many public records, until your copyright is registered in some manner with the copyright office, you are not legally “entitled” to receive royalties from compulsory licenses; or even to recover past royalties earned after you register the copyright.

Having the song registered in the Copyright Office does not necessarily mean it has to have a copyright registration filed. But the law does say, “…the copyright owner must be identified in the registration or other public records of the Copyright Office.” Those “other public records” could include transfers of ownership, license agreements, termination of transfers, or other records where you, the owner of the copyright, are identified. But the law is clear that these public records must be filed in the Copyright Office in order for you (the copyright owner) to be “entitled” to receive these compulsory license royalties.

So, a song could be a number one hit on radio, or even number one on iTunes downloads, and yet have royalties legally withheld from any streaming service (Spotify, Rhapsody, etc.) which licenses their content through the practice of compulsory licenses, until the copyright and owner information has been registered in some manner in the Copyright Office.

This should be pretty good motivation for copyright owners to register, in some manner, their copyright and information in a timely manner, at least after the song has been released in some commercial manner, making it eligible for compulsory licenses.

I would love to hear any thoughts and comments from others in the industry about this practice.

John Barker
ClearBox Rights, LLC

“Education is learning what you didn’t even know you didn’t know.” – Daniel Boorstin

© 2013 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.

2 Comments

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2 responses to “Is Copyright Registration Necessary? (Part 3)

  1. Very good point, David. I will look in to that. I would also be interested to know if others have an opinion on the Berne point.

  2. Doubtless this is valuable advice, but it raises the question of whether US copyright law is in contravention of the Berne requirement of no formalities. The Bern treaty requires signatory nations (of which the US is now one) to refrain from making registration or other “formalities” a requirement in order for authors to obtain copyright protection. While, as you’ve pointed out in earlier instalments, one needn’t register with the Copyright Office in order to obtain the protection of copyright in the US, the requirement to register in order to qualify for royalties payable under the compulsory mechanical license may actually amount to a registration requirement which is at odds with Berne. I’d be interested to know your views on this.

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