Nicole Pott unravels copyright in 5 steps.
1. Fact number 1 (if you’re reading outside of the EU, different rules apply): copyright exists as soon as a piece of music is created. Compose a song and it’s copyrighted simultaneously. You don’t have to post a letter to yourself with a cassette tape in it to create copyright (although there’s no harm doing so to prove that the copyright is yours).
Your song is now your intellectual property (IP). You can if it’s good, as with tangible property, earn money from it (and if it’s really good – or even really bad, earn stacks of money from it), you can license it or sell it to someone else. And you can stop someone else using it (for which see point 4).
For the purposes of the rest of this blog we’re going to call our song Alan.
2. You can mark Alan with the copyright symbol (Alan©), your name and the year of creation. Whether you mark it or not doesn’t affect the level of protection you have. Think of it as a stick in the sand to mark Alan’s copyright territory.
3. Copyright in the UK lasts for 70 years from the author’s (artist’s/composer’s) death. So, let’s take you. Suppose you die in five years time. That means that your estate will benefit from any income associated with Alan until 2091. Let’s take another, more mainstream classic, Rudolph The Red Nosed Reindeer. Out of copyright, right? Wrong. The writer of that Johnny Marks died in 1985. So his estate will be enjoying royalties for some years yet.
4. What happens if someone copies Alan? If it’s without your permission, you can legally stop them and claim damages for the loss caused by them using Alan (feeling awkward about picking this name) without your permission.
So with the latest hit to reach the headlines, Stairway To Heaven, the lawsuit has been brought by Michael Skidmore, a trustee for the late Randy Wolfe (also, interestingly, known as Randy California), who was a guitarist in the band Spirit and the composer of Taurus. Skidmore said band member Jimmy Paige may have been inspired to write Stairway to Heaven for Led Zeppelin after hearing Spirit perform Taurus while the bands toured together in 1968 and 1969, but that Wolfe never got credit.
A Los Angeles jury will decide whether or not infringement has occurred.
5. How does copyright infringement occur? Mostly, in our business, by copying the whole, or a substantial part of a song without the owner’s permission. ‘Substantial’ is, needless to say, open to interpretation.
And it’s strict liability. That means if you inadvertently infringe Alan (now definitely regretting the name) then whether or not you did it because you heard it on the TV while in a semi-sleep state and then woke from your slumber with a marvellous little ditty in your head which actually it turns out is a rip of Alan’s hook and you put it into your song without realising you’d cribbed it – it doesn’t matter. If you’ve infringed, you’ve infringed.
And here’s the other rub: the onus is on you as the defendant to prove you didn’t infringe, not the claimant to prove you did. Good luck trying to get out of that then.
So, in summary, copyright is a valuable asset. In a musical context, it also affords protection for songwriters and composers alike from someone else copying a composition without asking (and paying for it) first.
Maybe there’s a melody in Alan somewhere…