Musicians interact with intellectual property (IP) on a day-to-day basis, yet many are unaware of the elements, rules, and rights involved. This is understandable given the combination of fairly complex doctrines comprising IP law and the time, effort, and energy a music career demands. Often, musicians will farm out the seemingly administrative nature of managing their IP rights to others, which results in substantial reliance upon the managers’ understanding of the legal regimes, and significant trust that they will navigate those regimes in the best interests of the musician.
IP laws are divided into several legal frameworks, including copyright, trade-mark, and patent laws. This article seeks to provide a basic jumping off point for musicians to better understand the two IP areas most frequently at issue in the music business, namely, copyright ad trade-marks.
Arguably, copyright laws are the most germane for musicians, in that the creation of music itself fits under the umbrella of copyright protection. Copyright laws provide a host of default rights to the creators of songs, including the sole right to: produce the song, reproduce the song (i.e., make copies of it), perform the song, publish the song, and synchronize the song to visual content.
A common misconception about copyright is that it affords protection to an idea. This is not the case. Rather, copyright law protects the original expression of an idea. In other words, copyright doesn’t protect your brilliant idea for a song, but when you actually write that song (i.e., express it), copyright protection kicks in.
In fact, that protection kicks in as soon as you express the song in a tangible form. This tangible expression is known as “fixation”, which simply means the song has to have been expressed in material form. For example, if you record yourself performing the song, or if you write down the elements of your song, such as lyrics, melody, and chord progression, you have tangibly expressed it.
If someone copies your song, s/he has infringed copyright. To ascertain infringement, an arbiter (e.g., a judge) has to find that the person accused of copying took a ‘substantial’ part of the original work. What amounts to substantial is not necessarily black and white. The arbiter has to use her/his discretion juxtaposed against a sliding scale comprised of both qualitative and quantitative variables. A song may potentially infringe copyright even if it only copies a small piece of another work, so long as it qualitatively meets the threshold required.
While copyright protection for your song exists automatically, practically, you may need evidence showing that you are the original author. Determining who wrote a song is likely based on who wrote the song first. Consider an example where two songs sound similar enough that a neutral arbiter would judge one to by copying the other. All else being equal, the infringing song is likely the one that was written later in time, because
that would make the notion that it was copying much more plausible (it’s hard to imagine copying a song that has not yet been written/expressed).
Several years ago in this column, Chris Taylor wrote about how to protect songs under copyright law. His suggestions included: (1) using song repositories (e.g., the Songwriters Association of Canada Song Vault at http://www.songwriters.ca/songvault.aspx); (2) registering songs with the appropriate regulatory bodies (e.g., the Canadian Intellectual Property Office at http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00051.html; the United States Copyright Office at http://www.copyright.gov/help/faq/faq-register.html; etc.); and (3) employing “Poor Man’s Copyright”, which involves sending date-stamped copies of the song to yourself, and leaving it unopened until such time as you need it for evidence. These are all still valid approaches to bolstering copyright protection for your work.
It is important to note that registering your song with a regulatory body does not in and of itself provide evidence. Rather, registration creates a favourable default position for the registrant, should a legal challenge arise. Simply put, if you register your song with a government agency, anyone who claims you copied him/her, will have to prove it because the courts will presume you are the original author based on the fact that you are on record as the registrant.
Generally, copyright can be described as a complex web of layered rights. Indeed, sorting through these layers requires more time and space than is available in this forum. I suggest seeking legal counsel on the subject, if/when you create songs.
Trade-marks provide protection for any combination of words, designs, or symbols used to distinguish the source of wares or services. This protection is for the exclusive right to use a mark, as opposed to protecting the mark itself. Note, the mark itself, could potentially be protected under copyright law depending on if it meets the basic criteria for a protected work.
Trade-mark law serves consumers by ensuring the brands they think they are purchasing are in fact those brands. Similarly, trade-mark law serves businesses by ensuring the reputation and good-will they build doesn’t get usurped by others in the market place.
The most obvious instance of trade-mark relevancy for musicians is in the artist/band name. Bands or artists with the same name can cause confusion. Trade-marks aim to curtail, if not eliminate, such confusion. It’s important to note that a trade-mark can’t be primarily just a surname of anyone living or who died within past 30 years. In other words, you likely cannot register “Gordie Howe” as your trade-mark.
As with copyright protection, trade-mark protection can exist for business names and trade names without registering the mark. However, un-registered marks aren’t afforded the same level of protection as registered ones. For example, an unregistered mark is protected only in the geographic region where it is distinct, whereas a registered mark would be protected throughout Canada.
Registration lasts for 15 years, and so long as you are still using the mark, you can keep renewing it every 15 years.
As with copyright matters, and any other IP matters, I recommend musicians seek the counsel of legal practitioners well versed in the field.
This article was previously published in Canadian Musician. Safwan Javed is a member of the Wide Mouth Masons and currently serves as a board member of the S.A.C.