I was just browsing my collection of bootlegs records and a thought occurred to me. Artists such as Paul McCartney have a huge stockpile of great songs they’ve never released or published. How these songs make it onto bootlegs I have no idea, but I’m very thankful for the efforts of these bootlegers. This being the case, who’s to stop someone from claiming one of those unreleased songs as their own? Perhaps they could register a copyright, or maybe even record and release it? Has this ever happened before?
As a songwriter myself I would never consider doing this, it’s just a hypothetical question. But what if I wanted to ‘cover’ one of those unpublished songs on one of my albums? Can I? Who gets the royalties? Again this is a hypothetical question because pigs will fly before a label seriously considers releasing any music by me.
I used to manage a band some years ago. All their original material was registered with APRA - The Australasian Performing Right Association Limited. Although most of the songs were never recorded they are still the property of the band. If you were to record a version of one of these songs that you heard on a live tape, the boys would be suing you (those that are still alive anyhow).
I’m not very familiar with the concept, but in the law is a concept known as a common-law copyright. If it’s your work and it is not released into the public domain, you own the CL copyright. If somebody takes this work for their own and releases it to the public, he is stealing your work and violating your CL copyright.
Under the old 1976 Act you could not legally “cover” a song until it was publicly released. That is, you had the right of first recording. I can’t say under the current act.
Released or unreleased, the copyright belongs to the creator(s). It need not be registered per this site.
A clip from that site says,
“It’s easy to copyright music. You have a valid copyright as soon as your original song or sound recording is fixed in a tangible medium of expression. That’s a fancy term coined by music copyright law, and means that your song or sound recording must be written down or recorded. You don’t need to register your copyright with the U.S. Copyright Office in order to have a valid copyright. However, registration does give you additional protection in the event someone infringes your work. For additional copyright information and to learn how to register your music copyrights, read the article, How to Copyright Songs and Sound Recordings.”
(bolding mine)
If you can find it, then it’s copyrighted–unless the copyright has expired, and I’ll let you search for the laws pertaining to that.
So if a song is available as a bootleg, it’s already copyrighted. Now, just as a WAG, if you copped Bob Dylan’s bootleg of a song he wrote but hadn’t released on a CD, you would still be unable to release your recording until he releases his, even though it’s readily available as a bootleg. That’s the situation Cecil talked about his in column.
Specifically, under the current act, if you register your copyright within three months of first “publication” of the work, you do not have to prove actual damages for infringement, but instead can claim statutory damages of $750-$30,000 per act of infringement. From experience, I can tell you that proving actual damages (i.e. lost profits, etc.) is typically a very burdensome battle between expensive expert witnesses. “Publication” means the point when the work is first exposed to another, by recording, performance, or even showing the transcribed piece to another.
Further, in a dispute between two persons who claim a copyright over a work, the dispute is often “who created it first”. Of course, a registration fixes a date of creation for a putative author. Registration is cheap ($30) and easy, and even if Mr. McCartney’s songs have not been recorded, I would be shocked if his reps did not register them.