Producer's Rights

Musical Copyright Tips to navigate murky shark-filled waters

The copyright law can be a two-edged sword or, more accurately, a sword and a shield. If it’s your work that you wish to protect, you can register it in the U.S. Copyright Office for $45. On the other hand, if you decide to use the work of someone else, you must be careful not to infringe the other person’s copyright, often referred to as intellectual property rights.

To register your video and/or your music or soundtrack, simply download the appropriate form and instructions from the U.S. Copyright Office Web site: You will want to use Form PA (performing arts) for your videos or Form SR (sound recordings) for your original music, if recorded separately. If you fill out the simple two-page copyright form and file it yourself, you can save an average of $300 in legal fees. Consider that a yearly subscription to Videomaker magazine now costs around $12. That means that just this information alone can save you enough money to subscribe to this magazine for the next 25 years, give or take.

Why Register?

Once you have your registration, you will have the ability to bring a legal action for copyright infringement against anyone who, without your permission:

1) produces your copyrighted work in copies or phonorecords;

2) prepares derivative works based upon your copyrighted work;

3) distributes copies or phonorecords of your copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;

4) in the case of musical or dramatic works or motion pictures and other audiovisual works, performs your copyrighted work publicly;

5) in the case of musical or dramatic works or pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, displays your copyrighted work publicly; and

6) in the case of sound recordings, performs your copyrighted work publicly by means of a digital audio transmission.

If you can’t prove the damages that you sustained due to the misappropriation of your work, you can request statutory damages, which the judge can set at between $750 and $150,000, at his or her discretion. If the copying is especially heinous, the infringer may even spend up to five years in jail.

Speaking of remuneration, you also have the right to license your work, in order to receive royalty payments when your licensee makes or uses those copies of your work.

Don’t Step on Toes

That’s the good news. But what if you decide that someone else has produced a work that is so good, you’d like to incorporate it in your work? As you might expect, the most common sort of intellectual property that videographers want to use is sound and, in particular, music.

In the case of using another party’s music, it’s the other party who now has all of the rights mentioned above. And it’s you who will not be able to make or use copies or derivative works from the original unless you obtain permission from the copyright holder. Bummer.

Having Your Cake but Not Paying for it

But what would the law be without loopholes? In the case of copyright law, there are a few that may help you. But before I get to those loopholes, let me suggest that you consider bellying up to the bar and requesting that the copyright holder allow you to use the work. The copyright holder may grant you the right to copy the music for very little or no money. It’s worth asking. Just remember to get that permission in writing.

As for the loopholes, here’s the first one: no work created before 1922 (movies, recordings, sheet music, etc.) can be under copyright. That’s the magic date at which all previous registered copyrights have expired. So you can find old music books or musical scores, for example, and play the music on your piano or your guitar for your videos. You can’t use a recent recording of old music, however, since the performers or their publishers would have rights to the copyright to their specific performance.

Here’s another loophole: if you plan to use someone else’s copyrighted work without permission, you can do so as long as your intent is to make a video for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. That’s called fair use. Unfortunately, wedding videos, school performances and entertaining scenarios do not generally fall within one of the categories above.

Here’s a final suggestion: if you have musical talent, compose and perform your own music or hire someone to do it for you. You will need a written agreement with that composer-performer to be sure you own the copyright rights to the work that he or she creates for you.

A popular way to obtain royalty-free music is to purchase buy-out music, available from some of the organizations that advertise in Videomaker magazine.

The information in this article has not only saved you money, but has protected you from seeing the inside of a courtroom or, worse yet, a jail.

Mark Levy is an attorney specializing in intellectual property law. He has won amateur moviemaking awards in many countries.