Playing Original Songs Live Before Copyrighted

[GreenElf]

I’ve been listening to some music in local venues, and the musicians sometimes mention that they’re playing an original song. Is it a bad idea to play an original song live before you’ve copyrighted it?

[scabpicker]

Well, copyright is pretty automatic once you have a tangible copy of the song. Most bands or songwriters have already made a home recording of their work, at least to keep it firm and their minds and make it easier to teach the other musicians. If they can read/write music, writing it down would be enough.

So even though they haven’t released it for sale, there’s probably a copyright on the song.

Now, if the band is playing it live without recording it in some format before, it’s possible that the song could be taken before they have a copyright. Of course, they could always just record the show.

[running_coach]

Copyright occurs at creation. Even if they’re improvising on the spot, it’s copyrighted.

[RealityChuck]

Usually, if they play an original in concert, it’s already been recorded in the studio and the copyright registered.

[Alley_Dweller]

@running_coach

Copyright occurs at creation. Even if they’re improvising on the spot, it’s copyrighted.

No. In the United States, there is no copyright until it is fixed in a tangible medium of expression.

17 USC § 102:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Just humming or playing a tune does not create a copyright in the music unless you write down or otherwise record the tune.

[GreenElf]

@RealityChuck

Usually, if they play an original in concert, it’s already been recorded in the studio and the copyright registered.

The musicians I’m referring to are playing in local restaurants in obscurity, not stadiums with concert tickets.

[GreenElf]

@scabpicker

Well, copyright is pretty automatic once you have a tangible copy of the song. Most bands or songwriters have already made a home recording of their work, at least to keep it firm and their minds and make it easier to teach the other musicians. If they can read/write music, writing it down would be enough.

What if another musician wants to claim the song as their own, so they memorize it while listening to the original musician, then go home and record their own version or write it down? Would the copyright be in dispute?

[bienville]

@GreenElf

What if another musician wants to claim the song as their own, so they memorize it while listening to the original musician, then go home and record their own version or write it down?

This is a pretty implausible hypothetical when it comes to songwriting. The small venue independent musicians I know are all performing their songs in Los Angeles- if there were to be a shark pool for this kind of thing then this would damned well be THE shark pool. And yet I’ve never known anyone to be terrible afraid of this happening to them.

The far more realistic hypothetical would be stand-up comedy.
Stand-up comics do worry about having their material stolen. Once some other comic performs your joke on T.V., anytime you perform it afterward people will assume you stole the joke. It’s nearly impossible for a stand-up comic to prove that a joke was stolen. Thieves to get a bad reputation professionally, and there’s some self-policing that happens, some comics have refused to go on stage while a known thief was at the venue. The internet has helped a little bit in spreading these kinds of reputations beyond the comedy community but the truth is the general public really just doesn’t care.
If a songwriter is playing a song that has never been recorded there would really be no more safe-guards than for a stand-up comic. In reality, though, it’s just not as much a fear for songwriters. I’m not saying it doesn’t happen, but I’ve just never known of any musicians being hesitant to perform a new song for fear that someone in the audience will bootleg it, go home and record it, and put it up on Soundcloud claiming it as their own.

[SciFiSam]

@GreenElf

I’ve been listening to some music in local venues, and the musicians sometimes mention that they’re playing an original song. Is it a bad idea to play an original song live before you’ve copyrighted it?

If they’re recorded it at home first, it’s copyrighted (see another post above). You don’t have to register it, just record it, or even write down the chords and lyrics (because that could be replicated). If they have a friend recording their live performance, that would also count.

[scabpicker]

@GreenElf

What if another musician wants to claim the song as their own, so they memorize it while listening to the original musician, then go home and record their own version or write it down? Would the copyright be in dispute?

It could be, but that could happen even if they’d recorded/released the song. If someone’s willing to lie, they can buy the record, listen and write it down and then file a court case based on the false papers. It wouldn’t be a bright thing to do, but people do dim things all the time.

[Acsenray]

To sum up:

1. Copyright protection attached as soon as a work is fixed in a perceivable medium, such as transcribed on paper or electronic document or audio or video recoding. Most songwriters take notes or make audio recordings as they develop songs. The fact that some portion of a performance might be improvised doesn’t affect this.

2. A joke as it is told – that is, the actual words used – is theoretically protectable. But it’s rare that another comedian would copy a joke word-for-word. The premise of a joke however is not protected by copyright law and the comedy community uses other methods to try to police this, such as shaming or shunning. This works to a large extent because the comedy business is a very close-knit social group and so if you piss off the group you can harm your career, viz. Carlos Mencia.

3. You can in theory have a dispute over who created something or who copied something. That’s what courts are for. You bring your evidence and witnesses and prove your case. If course there’s always a possibility you can get screwed if your evidence is really shitty, but that’s going to be rare.

[Acsenray]

Also remember that copyright law allows for independent creation. It’s entirely possible for two separate people to come up with the same or very similar works and both have independent rights in them. When we’re talking about pop songs with very simple chord structures or common themes (I love you), it’s going to happen once in a while. So, a songwriter in this case will have to prove copying. That the other guy heard the song or had access to it in some way and then copied it.

[Maserschmidt]

The Master speaks about first issue rights in the last paragraphs of this article; does this help?

Must you get permission to record someone else’s song?

[Acsenray]

Just to add, being protected by copyright law is separate from copyright registration.

Your original and creative work of expression is protected as soon as it is fixed in a perceivable medium.

But in order to bring a claim in federal court under the Copyright Act of 1976, you have to register that copyright interest with the Copyright Office.

There are advantages to registering as soon as possible, but as a general legal matter, you can wait until you’re ready to sue.

Because of this distinction, I will once again get up on my soap box to recommend that “copyright” NOT be used as a verb (as in the thread title).

“Copyrighted” as used by non-experts is ambiguous and encourages misunderstanding of the law, especially because many people think that “copyrighted” means “registered” and it really doesn’t. “Copyrighted” means “protected” and as I explained, you can have protection without registration, at least until you’re ready to file a complaint in federal court.

[RealityChuck]

@GreenElf

The musicians I’m referring to are playing in local restaurants in obscurity, not stadiums with concert tickets.

Then they’re protected by two things:

1. It’s highly unlikely anyone would try to steal their songs because they’re not that good. It’s a fact that most of what up and coming artists produce is just not up to the quality level required, even though the crowds and the band might think it’s a surefire hit.

2. Most artists at that level respect each other. They’re all in the same boat – fighting for success – and stealing songs is going to hurt their chances in the long run. In addition, they can just walk up to the band at a break and say, “I love that song. Can I cover it?” It’s not hard to get permission.

Now, maybe if Jimmy Page were in the audience…

[Melbourne]

@Alley_Dweller

No. In the United States, there is no copyright until it is fixed in a tangible medium of expression.

17 USC § 102:

Just humming or playing a tune does not create a copyright in the music unless you write down or otherwise record the tune.

Copy Right == the right to make copies.

The creater has the right to make copies, from the moment of creation. Any copies made are covered by the copy rights: they are either authorised copies, or they are not authorised copies.

That includes the first tangible expression: either it is an authorised copy, or it is not. Humming or playing a tune creates a copy right: the copy right applies to tangible expressions, and is expressed in copyright legislation.

There is also a seperate performance right, which in most countries is covered by the same legislation that covers copy rights. I can hum the tune I created: I have the performance right. You may not hum the tune (in public, to an audience) except with my permission. Again, the right exists from the moment of creation, it applies to an action at the moment of performance.

Since copy rights are enforced by local legislation, copies are subject to copyright law at the moment of importation. this means that copyright legislation typically covers importation, as well as copying, as well as performance. There are many things that arn’t automatically obvious about copy rights.

[Acsenray]

@Melbourne

That includes the first tangible expression: either it is an authorised copy, or it is not. Humming or playing a tune creates a copy right: the copy right applies to tangible expressions.

No. This is flat wrong under American law. In order for copyright protection to attach, the following are absolutely required:

1- Creative
2. Original
3. Work of expression
4. Fixed in a perceivable medium

If the work has only been performed and not fixed, there is no protection. The fixation can be any kind of recording or transcript or notation, but there must be a fixation.

@Copyright Act of 1976

§ 102 . Subject matter of copyright: In general28

(a) Copyright protection subsists, in accordance with this title, in original works of authorship **fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. **Works of authorship include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.

[Acsenray]

@Melbourne

Copy Right == the right to make copies.

I know this has become something of a talisman on the Internets, but it is a deceptive over-simplification. I would recommend dispensing with it.

For example, Section 106 of the Copyright Act of 1976 sets forth many rights that aren’t literally described by “the right to make copies” –

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

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

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

§ 106A . Rights of certain authors to attribution and integrity39

(a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right—

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.