The Myth of The Poor Man's Copyright (revisited)

I am not in the habit of recycling my blog posts but since this question has been asked of me twice this week, I sense that it is "in the air"...so here we go:

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

Read Those Old Contracts

I had a long conversation with a friend/client yesterday.  She mentioned that she had been reviewing some of her old publishing contracts and discovered that she was entitled to a reversion of some of the songs in her catalogs.  It is not unusual for songwriters, especially those who have been at this for awhile and have had multiple publishing deals to find out that there are elements of their contracts that they might not remember.

 Reversion clauses in contracts can be tricky because they are sometimes limited in terms of the amount of time the writer has to notify the publisher to exercise the reversion.

I can think of other types of reversions; for example some recording contracts may feature a reversion of masters and  all master license agreements essentially function the same way.  Again, the trick in all of these instances is that the artist has to take some affirmative action to get their materials back.

There are other dates to keep in mind. Old management contracts may contain sunset clauses-you don’t want to be paying commissions when it’s no longer required. Of course, all contracts have limitation periods after which one can no longer object to a statement or accounting.

Finally, as I have discussed before, with the coming onslaught of statutory terminations under the Copyright Act, keeping up with dates is going to be of more importance than ever before.

As a lawyer, I try to keep up with these important dates for my clients but it’s not always possible, especially when a client has changed attorneys, moved, etc.  Therefore, it is important for all artists to undertake this process-of going back through their old contracts.  You never know what you may discover.

On The Legal Status of a Rock and Roll Band

Dealing with disputes among band members (and former band members) is one of the most difficult areas an entertainment lawyer can get involved with.  The legal organization of a musical group involves intersecting area of corporate law, copyright law and trademark law, as well as basic human emotions.  When group members function together in perfect harmony their business models can be a source of inspiration.  However, when human conflicts enter the picture, even the best organized entity can show its shortcomings.

            I have read about two interesting cases recently.  The first involves the 1980's band Queensryche.  According to published reports, the band's corporate entity voted to remove founding member Geoff Tate as lead singer of the band, following a Spinal Tap-like series of events.  The other band members apparently set forth very good reasons why they felt they could no longer continue with Tate in the band and based on provisions set out in their original partnership agreement, they expelled him-subject to a duty they recognized to account to him for his share of profits.  In order to avoid even further controversy, the "new" entity even began performing under a different name, "Rising West" to avoid potential trademark problems.

            Nonetheless, Tate has sued his former partners alleging a host of indignities the most significant being corporate oppression.  This seems to be a text book case in using corporate law to attempt to wrestle some benefit out of an entity and to essentially punish former band mates from working without him.  This scorch the earth technique is far from certain in most cases, especially those involving human feelings and egos.

            An even stranger case  I just read about involves a former member of the J. Geils B Band who happens to be named J. Geils, who is apparently involved in a trademark battle with his former band mates.  It seems that both J. Geils and the J. Geils Band (under their corporate entity T& A Research and Development Corp.) have filed competing trademark applications to try and protect the band's trademark.  This has apparently led to litigation in both the Patent and Trademark Office and in federal court. Buried in the evidentiary murk of all of this, is the fact that at some point in the past all the band members signed a shareholders agreement restricting their right to use the name "J. Geils Band" independently.  If that is true, we may end up with a case of an individual being able to perform under his own name due to activities he once undertook as a shareholder.

            All of this seems to demonstrate the point of this tale,  which is that dealing with disputes among band members is usually very, very difficult.  I've been involved in a lot of these disputes and I can say that more often than not, corporate structures and shareholder agreements as well as form cookie cutter LLC agreements have been virtually worthless in resolving these disputes; while a good well thought out partnership agreement always seems to be both enforceable and convincing to all parties involved.  The moral here is that a band needs to have these discussions early on in their careers and to commit their agreements to writing in a cogent, equitable manner.  It is a discussion that no band wants to have, but it is absolutely vital.

In Defense of Emily White

A month or so ago, Cracker front man (and music business school academic) David Lowery wrote "An Open Letter to Emily" which, as most people know by now was a response to a blog by Emily White, a not quite 21-year-old intern at NPR's "All Songs Considered".

            Lowery's piece is a well reasoned, measured and documented explanation of how stealing music has hurt musicians and songwriters. The  article went viral and was "shared" by everyone I know.

            I read Lowery's piece before I read Emily White's blog post so I decided that in all fairness I needed to see exactly what she had to say.  It turns out that as good as the “open letter” is, Lowery almost completely misses White's point.  White's blog "I Never Owned any Music to Begin With" reveals an honest portrait of a young person growing up in the internet world.  White is not championing stealing music (although she admits to having done so).  She is also refreshingly not one of those people who jump on the bandwagon of "the new paradigm" (e.g. give the music away for free so you can sell a ticket and/or a t-shirt).

            As an aside,  the part of White's blog that probably irks Lowery and others is the section where she describes "sitting on the floor of my college radio station ripping music onto my laptop" from the promotional album sent to the radio stations by record companies.  I submit that this has been done forever (through various forms of media) and that anybody who works in the music business at any level will admit that they love getting free stuff.  Also, I think that people like Emily White are  this generation's culture vultures – they love music, they absorb it and in some ways help illuminate what's good and bad for the rest of us.  That's what college radio did before colleges started shutting down these stations. But, I digress.

            White's major point is that while she has 11,000 songs in her iTunes library, she has only purchased 15 physical CDs in her lifetime.  Her point is that she doesn't care about owning the physical artifact.  For someone who grew up in the album era and still obsesses over his record collection, this is shocking.  However I have witnessed the same phenomenon in my teenage daughter, who is a huge music fan and whose tastes are as eclectic as they come.  She listens to music constantly, primarily through Pandora and songs purchased from iTunes.  I just counted and she has exactly 30 CDs in her collection.

            White is not arguing that music should be free and that David Lowery should not be paid.  She is asking for "one massive Spotify-like catalogue of music that will sync to my phone and various home entertainment devices".  I can remember fantasizing about the same thing as a kid – now it is very nearly a reality.

            To those who argue that Spotify's payment system is unfair – I am not sure that the issue has been fully and finally determined ,yet but I can think of two initial responses.  First at least someone is providing a mechanism that pays  for music and therefore combats piracy and second, as old line music publishers used to say, music is "a penny business".  For better or worse there are more sources of pennies now.  Also, Spotify is now second to iTunes in terms of generating revenue for record companies – so it's not going anywhere.  It has been said so many times before, we are witnessing a huge change in the way the music business is structured.  It is painful for a lot of people, from performers to studio owners to lawyers but I can't help thinking that the core components of the business – artists and their fans are in a healthy position.  The rest of us need to learn to adapt. I don’t like it any more than David Lowery but it is reality.

Mommy Porn and eBooks

I have some vague notion of what E.L. James novel “Fifty Shades of Grey” is about although I did not know until today that this was actually a trilogy (you know, like “Lord of the Rings”). I was not surprised to learn that the books have sold 19.4 million copies in the U.S.  and 31 million worldwide. What does surprise me is that in the U.S., the sales are evenly divided between traditional books and e-books.

As the child of book store owners, this distressed me. As a lawyer trying to watch the trends, I find this fascinating. The book industry has apparently now caught up with the music industry in its transformation into the digital realm. We many not like it but its happening.

The Wall Street Journal offered some anecdotal evidence as to why the digital sales of the so- called “mommy porn” might be so high but the fact that nearly ten million people willingly downloaded an ephemeral copy of this classic cannot be ignored. This has got to make retailers nervous. However at the same time these facts offer significant encouragement to both book publishers and those exploring self-publishing.

Digital Estate Planning

I just finished reading an interesting article by an attorney named Scott Zucker on “Digital Estate Planning” for clients.  Coincidentally, I had been thinking about similar issues lately as I considered  the implications of some of my deceased friends’ Facebook pages.  I know this sounds either morbid or just plain strange but think about it for a minute.  Do you want to have some control over what happens to your online presence after you pass away? 

                I am going to resist the urge to start discussing William Gibson novels and just point out that Mr. Zucker expands the discussion to an examination of what he terms “digital assets” which he defines as “any online account that requires a user name or password” or “any files stored in places including an individual’s computer, mobile phone, server…” or, I imagine the all-pervasive “cloud”. 

                We all probably have a larger online presence than we actually think we have; from websites to social media, iTunes accounts, bank accounts and bill paying.  Zucker suggests that the individual who is thinking about estate planning should prepare a list of each of these accounts with the password and his or her intentions regarding the account for his executor or estate administrator.

                Obviously this is going to involve gaining an understanding of each of the major sites’ terms of service and ultimately involving a lot of work and a lot of hassle, but I can understand the benefits.  For example, I am aware of a family who is not happy with the way people are conducting themselves on   their deceased relative orelative’s Facebook page.   They should have the right to handle this account as they see fit and with as little angst as possible. Really, there are a lot of issues to consider once you start thinking about this.

                All of these are issues that only a science fiction writer could have imagined ten years ago but I see the need to examine them as we go forward.

The Village People and Copyright Termination

You can't trust the regular media when it comes to copyright stories, they almost always get it wrong.  Case in point, the general reporting of the court's granting the Defendant's motion to dismiss in Scorpio Music S.A. v. Victor Willis (Willis was the motorcycle cop in the Village People and interestingly enough, the writer of the English language lyrics to most of the band's biggest hits including "YMCA").

Many of the stories I read reported that Willis somehow recaptured the recordings of these works.  This is not true.  As far as I know, none of the sound recording copyright termination cases have made it to court yet and presumably won't until after 2013.

However in distorting the court's holding, the media missed the case's most significant points.  The holding clarified two important aspects of the termination  provisions of the Copyright Act.  First, the Court deal with the provision "in the case of a grant executed by one author, termination of the grant may be effected by that author".  In other words, if an author executed the original copyright assignment individually then he or she does not need his co-author's approval to terminate the grant.  Reading the statute, the intent is clear but it has been confused with the law surrounding joint authorship – and this is a problem that will be encountered by group members who signed joint publishing agreements and assignments from 1978 on.  However for the individual who might have been a co-writer, the law is explicit and the holding in this case aids in the interpretation. You don’t need anyone’s permission to file your notice of termination.

Second, the case clarifies the point that upon termination, the author becomes an owner of an undivided interest in the copyright equal to the amount he originally transferred – irregardless of whatever royalty percentage he might have received pursuant to the contract.  Again this is explicit in the Statute but it is comforting to see it set out and explained by the court.

Admittedly, the facts of the Willis case are unique but then all cases have their own unique set of facts.  I think that the cases are going to begin to provide more and more guidance to the murky area of copyright terminations as we go along and they are each  fascinating in their own way.