Making it in the Music Business

One

Copyright Basics

Many songwriters believe that copyright law is simply tedious stuff that nobody except lawyers and maybe music publishers needs to know anything about. In fact, copyright so permeates the music business that a working knowledge of copyright law is essential for anyone who hopes for any sort of music career. Since copyrights are their stock-in-trade, songwriters especially need to know plenty about copyright law, both to protect their own rights and to avoid violating the rights of others. That' why the first four chapters of this book explain copyright law and the business practices that surround the exploitation of music copyrights. Don't think that four chapters on copyright is overkill. In fact, unless you read and understand these chapters on copyright, you can skip the others, since without a working knowledge of copyright law you'll be too uninformed to create a career in music anyway.

The rights of all U.S. copyright owners are created by the U.S. copyright statute (a statute is a written law), which is the latest in a long series of copyright statutes passed by Congress. (There is no such thing as a state copyright statute; there is only one copyright statute in the United States and that statute is a federal statute.)

Our copyright statute exists because of a provision inserted into the U.S. Constitution by the men who wrote it. Article I, Section 8, Clause 8 of the Constitution gives Congress the power to make a law that "promote[s] the Progress of Science and useful Arts, by securing, for limited Times to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries." This section of the Constitution is the origin of both the U.S. patent and copyright statutes. The idea behind this provision was to encourage American citizens to create books and inventions by giving them property rights in their creations.

Congress passed the first American copyright statute in 1790; it protected only books, charts, and maps. Musical compositions were granted copyright protection in 1831, photographs in 1865, paintings, drawings, and statuary in 1870, movies in 1912, but sound recordings were not granted protection until 1971. The newest U.S. copyright statute became effective January 1, 1978. It aims to encompass both existing and emerging technologies for creative expression by stating simply that copyright protects "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." (The new copyright statute refers generally to all copyrightable products of the imagination as "works" and to the creators of these "works" as "authors," even when the "work" created by the "author" is something besides a book. We will occasionally adopt the terminology of the copyright statute in our discussion of copyright, and that discussion will focus on musical compositions, since those are the sorts of "works" that primarily concern songwriters.)

The implications of the phrase "fixed in any tangible medium of expression" affect every songwriter. Since the new copyright statute became effective, copyright protection for any song you write begins the moment your song is recorded on tape or written on paper, but not before, even if you've carried your tune around in your head and sung it in the shower for months. Since the "fixation" of your song is the trigger for copyright protection, you should record your song on tape or reduce it to a lead sheet before performing it live in a club. You don't have to rent a studio and hire musicians to produce a 16-track tape of your song or hire an arranger to reduce it to a completely notated score to trigger copyright protection. All that is necessary is that your music and lyrics be recorded in sufficient detail that your song is accurately represented. A guitar-vocal cassette recorded on a boom box or a simple lead sheet with the lyrics and melody of your song will do it. Copyright begins once your song is "fixed." Unless you write a song as a "work-for-hire," because you wrote it, you own the copyright in it until you transfer ownership of the copyright to a music publisher under a song publishing agreement. (We'll talk more about work-for-hire and transfers of copyright in Chapter Four.)

But what, exactly, is a copyright? A copyright is a set of what are called "exclusive" rights. Exclusive rights may be exercised only, or exclusively, by the owner of those rights. Although copyright protection does not begin until a work is "fixed in [a] tangible medium of expression," copyright itself is in tangible; that is, you can't see a copyright or hold it in your hands or put it in your pocket. It is invisible, but valuable. In essence, a copyright is your admission ticket to participate in a complicated system based in federal law that exists to ensure that you as a songwriter get paid for any use of your songs. Even the lowliest unpublished, unrecorded songwriter can count on the full majesty and power of the U.S. government to help perfect and protect his or her song copyright, even if it is a bad song, because the copyright statute is a federal law, administered by a federal agency, the Copyright Office, and the courts that hear copyright suits are federal courts.

(Consequently, however, all this law ends at the border, because U.S. laws have no jurisdiction outside the United States or its territories other than the more or less reciprocal recognition other countries grant U.S. copyrights under the various copyright treaties to which the U.S. is a party. Under certain conditions that are too complicated to explain here, the copyright statute also limits the right of some foreign nationals to enjoy the protection of U.S. copyright law even if they create otherwise copyrightable works within the United States. If you're not a U.S. citizen, you may want to ask a copyright lawyer to help you determine under what conditions your songs are protected by U.S. law.)

Under the present copyright statute, copyright protection automatically begins when you first fix a song in tangible form. No formalities are necessary to acquire the protection of copyright law; you don't need anyone' permission to protect your new song with copyright and you don't have to file anything with any government agency. Copyright protection follows automatically, by action of federal law, from the act of creating a copyrightable work.

Many songwriters assume that their songs are unprotected by copyright until they send off application forms and fees to the Copyright Office to register them. This is not the case. Neither is it necessary to use copyright notice to secure the protection of copyright. The existence of the song as written in lead sheet form or recorded on a cassette is sufficient to trigger copyright protection. However, although copyright protection actually begins the moment a song is first fixed in any tangible form, the full range of benefits of copyright are not secured until the song is registered and unless proper copyright notice is used, as we will discuss at greater length in Chapter Two.

In short, the vast federal copyright machinery is like a bulldozer standing guard over the rights given you by the copyright statute, ready to help you squash anyone who would disregard them -- but you have to set it going. Your key to federal copyright protection is the set of exclusive rights the government grants you, as a new copyright owner, whenever you write a song.

The exclusive rights of copyright applicable to musical compositions are:

* The right to reproduce the copyrighted song in "phonorecords" (a term that includes vinyl records, cassette tapes, CDs, and all other "material objects," except audiovisual recordings, that embody recordings of copyrighted works) or otherwise make copies of it

* The right to distribute copies or phonorecords of the copyrighted song to the public

* The right to create "derivative works" (alternate versions) of the copyrighted song

* The right to perform the song publicly

With certain narrow exceptions, no one but the owner of a song copyright may exercise any of these rights. Any unauthorized exercise of any of these rights by anyone but the copyright owner is called copyright infringement, because any poacher on the copyright owner' territory is said to "infringe" upon the owner' rights, or violate them.

It' easier to understand these four exclusive rights of copyright if you consider them in terms of the ways songs are used.

Because the copyright statute gives you the exclusive right to reproduce your song in "phonorecords" and the exclusive right to distribute any such phonorecords to the public, only you may record it and sell copies of the recording in the form of vinyl records, tapes, CDs, and other phonorecords. This is true unless your song has been recorded previously with your permission and the recording was distributed in the form of phonorecords to the public within the United States. In that situation anyone can issue another recording of the song, subject only to the obligations imposed by law to notify you in advance of releasing the new phonorecord, to pay you royalties at a prescribed rate, and to furnish you with monthly royalty statements. This provision of the copyright statute is referred to as the "compulsory (mechanical) license" provision. Although you, as the owner of the song copyright, are the one who (theoretically) grants permission, also known as a "license," to record your song, the law makes the granting of such permission compulsory. That is, the law decrees that you must issue such a license. (There are three other, less important, uses specified in the copyright statute for which compulsory licensing is prescribed. Compulsory licenses also apply to uses of songs by PBS television broadcasters and in jukeboxes, and to some cable television uses.)

As a practical matter, however, because the copyright statute sets out strict and specific accounting regulations by which record companies must abide when they record songs under the compulsory mechanical license provision of the statute, record companies prefer to obtain permission to record songs by "direct license" rather than exercising their right to record the songs under a compulsory license. A direct license is a permission to record a song obtained directly from the owner of the song copyright. Record companies like direct licenses because they usually can persuade copyright owners to agree to more lenient accounting obligations and lower royalties than the copyright statute imposes for compulsory licenses.

The right to reproduce a song in the form of records, tapes, CDs, and other phonorecords is referred to as the "mechanical rights" to the song. The royalties paid by record companies for the use of songs as phonorecords are referred to as "mechanical royalties" or "mechanicals." (Most reproductions of songs have been electronic rather than mechanical for many years now, but when phonographs were invented they were mechanical, so we're stuck with the term "mechanicals.") Mechanical royalties are currently fixed by the Library of Congress at 6.6¢ per song for songs of five minutes or less or 1.25¢ per minute of playing time for songs longer than five minutes, per phonorecord sold. These rates are periodically adjusted for inflation; the statutory rate will increase again on January 1, 1996. (It is very common for record companies to pay even less than this small royalty for songs written or owned by the artists who record them, through the "controlled composition" clauses found in most contracts between recording artists and record companies.)

Because the copyright statute gives you the exclusive right to make and distribute other sorts of copies of your song, only you may synchronize the song with visual images, as for a movie, television program, commercial, or other audiovisual project, and only you may print and sell sheet music or make and distribute other visual copies of it. The right to use a song for a television or movie soundtrack is called the "synch (or synchronization) rights" to the song; the right to print sheet music is referred to as the "print rights." (But remember not to call the right to use your song as the "soundtrack" for a radio ad a "synch license," because there are no visuals in radio with which to synchronize your song. A radio commercial license is called a "transcription license," for some reason that nobody remembers anymore.)

Because the copyright statute gives you the exclusive right to create "derivative works" from your song, only you may change its words or music or create other versions of it or derive other works from it, such as a television script based on the characters and story of the song. Another common sort of derivative work that often produces bags of money for songwriters who agree to allow such uses of their songs is the reworking of a song into an advertising jingle by means of new or altered lyrics and/or a revised or shortened melody. (For instance, Mega Airlines could rewrite the lyrics of "The Wind Beneath My Wings" to refer to the joys of flying with Mega Airlines.) The right to prepare alternate versions of a song or create a derivative work from it is referred to as the "derivative rights" to the song.

The copyright statute also gives you the exclusive right to perform your song publicly. The "performance rights" to a song are divided into "small performing rights" and "grand performing rights."

The small performing rights are primarily the right to perform a song on radio and television, in clubs, concert halls, and parks, and in restaurants and other businesses on public address systems. The "performing rights organizations" (BMI, ASCAP, and SESAC) exist to collect the royalties created by these sorts of public performances of songs because it would be next to impossible for individual copyright owners themselves to collect the royalties due them from the many end users of their songs. These "public-performance royalties" typically represent one of the largest sources of income for songwriters.

The grand performing rights to a song are primarily the right to perform it in a musical play or as part of a television show or movie in a way that advances the plot. (In practice, however, the performance of a song in a television show, for instance, will create royalties for the small performing rights, and the grand performing rights will be included in the synchronization license issued by the copyright owner.)

Of course, the exclusive rights of copyright are exercised every day, legally, by people who didn't write the songs they use. How? These users obtain permission from the owners of the song copyrights, who are usually very happy to allow their songs to be used in return for appropriate payment. In other words, it' not trespassing if you have permission.

The exclusive rights of copyright apply only to what is actually protected by copyright. It may surprise you to learn that certain elements of your songs are not protected by copyright, no matter how hard you worked to come up with them. In fact, to understand what copyright protects, you need to know first what it does not protect.

The most basic premise of copyright law is that copyright protects only particular expressions of ideas, not the ideas themselves. This is a hard concept to grasp; it confuses even lawyers and judges. Nevertheless, it is logical, if you think about it. Our Constitution empowered Congress to pass a copyright law "to promote the Progress of Science and useful Arts." In other words, the goal of our copyright statute is to encourage free expression and creation so that all of society may benefit from the insights of the creators among us. If our copyright law allowed people to monopolize ideas, which are the building blocks of all literature, art, and music, free expression would be stifled.

Instead, copyright law gives you exclusive rights only in your own particular, original expression of any idea. Therefore, anyone else' expression of the same idea is equally protectable by copyright, even if that person' expression duplicates yours. In fact, if two people independently come up with identical expressions of the same idea, both own valid copyrights in their expressions of it. The key to understanding this concept of copyright law is the word "independently." No one can copy your expression of an idea without risking a lawsuit for copyright infringement, but if another songwriter coincidentally duplicates the melody of your song, the law says he or she owns the copyright in that duplicate melody just as you own the copyright in yours.

There are other elements of songs besides the ideas they express that are not protected by copyright. All of these unprotectable elements are like ideas in that they are "building blocks" for songs that should be free for anyone to use.

Themes of songs are not protected by copyright. To understand this, think about love songs. Most popular songs in our culture are love songs, but there are only so many love song themes. Since the advent of radio, songwriters have filled the airwaves with variations on only a few: I'm-in-love-and-life-is-new, I-love-you-please-love-me-too, she-broke-my-heart-and-now-I'm-blue, he-left-me-what-can-I-do, you-lied-to-me-I'm-leaving-you. If copyright law granted a monopoly on the use of these themes to the first songwriters who created songs around them, the building blocks available to other songwriters would be so severely limited that no one after about 1952 could have written a love song without infringing the rights of someone who used the theme first. However, because there is no copyright in themes and since each theme can be expressed in an infinite number of ways, the world has not lacked for love songs, in the form of thousands of copyrightable expressions of each possible theme.

A word of caution, however. Although using the same theme for your song that another songwriter used first is never copyright infringement, taking any more from another song than the bare bones of the theme can amount to infringement. The moment you begin lifting from someone else's song any part of that songwriter's expression of a universal theme, you risk copyright infringement. Conversely, the more a song is a creative expression of a theme rather than just a bare, unadorned presentation of the theme itself, the more protection it is given.

Almost every songwriter has heard that there is no copyright protection for song titles. This is true. Copyright law specifically withholds protection from short phrases such as titles and slogans. The reasoning behind this rule is that titles and slogans are too close to mere unembellished ideas to be granted copyright protection.

This means that if you find you've chosen for your song the same title as that used for an existing song, you don't have to worry about having infringed the other songwriter's copyright. However, if you intentionally or accidentally use the title of a famous song by another songwriter as the name of your song, you could run afoul of another kind of law, the law of unfair competition. It works like this: If you use the title of a well-known song as the name of your new one, consumers could buy the album that includes a cut of your song in the mistaken belief that it includes a cut of the famous song. Unfair competition law seeks to prevent this sort of consumer confusion by prohibiting your selling your product by taking a free ride on your competitors' coattails. Smart songwriters avoid very famous song titles in naming their own compositions because choosing an already famous name for the title of a new song can result in a lawsuit for unfair competition, which can be as expensive and troublesome as a copyright infringement suit. And since most music publishers will shy away from song titles that are already famous, you'll probably have to re-name your song before it is cut, anyway.

If copyright law does not protect titles, neither does it protect any other sort of short slogan or lyrical phrase. This means that short catchphrases or slogans used in songs are not protected by copyright. Short phrases of any sort are considered to embody too little creative expression to be entitled to copyright protection; that is, they are deemed by the law to be simply another variety of building block. As a general rule, the shorter the phrase, the less protection it is granted, since the shorter the phrase, the less protectable "expression" it embodies. Further, even if the phrase is a relatively long one, if it' merely a popular slogan that you have incorporated into your song as a lyric, any other songwriter can also use the slogan without infringing your rights, because you are not deemed to have any exclusive rights in it. If you use a popular slogan as the "hook" of your song, no one can legally copy your melody or the original parts of your song' lyrics, but they can use your hook in another song with impunity.

The denial of copyright protection to short phrases means that there is no more protection for short musical phrases than for short verbal phrases. Copyright does not protect short riffs, chord progressions, or other brief musical phrases.

Because copyright law does not protect methods or systems, the structure of your song is not copyrightable. Whether the structure of a musical composition is a method or a system or something in between is hard to say, but whatever it is, it' not sheltered under the copyright umbrella. In other words, copyright does not protect the way a song is constructed, only the particular musical and lyrical expression that is hung on the basic unprotectable framework of the song.

A related principle is that copyright does not protect your arrangements of other people' songs or, at least, arrangements that you can create without running the risk of infringing someone' copyright. It works like this: An arrangement of a song that is different enough from the underlying musical composition to evidence real originality would be protectable by copyright as a derivative work of the composition. No derivative work of a copyrighted composition can be created without the permission of the owner of the copyright, so no such extensive arrangement of anyone else' song is possible without copyright infringement. An arrangement that is not an extensive reworking of the underlying composition probably amounts only to a new method of performing the composition and therefore does not embody a new expression sufficient to earn copyright protection.

The exception to this rule is arrangements of public domain songs. These are old songs for which copyright protection has expired. Since anyone can exercise any of the rights in a public domain composition that were formerly reserved to the owner of the copyright in that composition, you can create any new version of the song you want, arranging its music or changing its lyrics at will, and earn at the same time copyright protection for your new version of the old song. You will not, by tinkering with an old standard, somehow retrieve from the public domain the basic underlying song; that' impossible under the law. However, you can keep others from using your version of the song without your permission.

Surprisingly, this is not a useless piece of information. More than one big pop hit has actually consisted of new lyrics for a new arrangement of an old favorite. For example, the Elvis Presley hit "Love Me Tender" is nothing more than a reworking of a popular Civil War - era ballad called "Aura Lee." And more than one songwriter has used the melody from a piece of classical music as the basis of a new song. (Don't rush off to write hit versions of old pop tunes or classical melodies until you read Chapter Two, in which we will discuss how you can determine whether a song is indeed in the public domain and available for reworking without pesky copyright infringement problems.)

Under ordinary circumstances, the owner of a song copyright is the person who wrote the song. Although ownership of the copyright begins the moment the song is fixed in a tangible form, ownership of the physical object in which the song is embodied does not convey any ownership in the copyright to the song. If two or more people collaborate to write a song, they each own equal shares of the song copyright unless they agree when the song is written that one of them owns a larger or smaller share because of his or her larger or smaller contribution. It is a quirk of copyright law that if a lyricist writes all the lyrics to a song and a composer writes the entire melody, each owns half of the entire song, rather than the lyricist owning only the lyrics and the composer owning only the music. This means that if you've written a song with another writer you can't simply take the melody you wrote and get your buddy Leon to write new lyrics; in fact, if you did, the first lyricist would own an interest in the new version of the song because he would own half the music you used for the new version. But this is not so if you compose a piece of music that you do not intend to merge with lyrics later, or if you write a poem with no idea that it may be set to music to become the lyrics to a song. In these instances, the composer would own 100 percent of his music and the poet would own 100 percent of her poem, even if either should later be turned into part of a song. The intent of the composer and lyricist at the time of writing the music or lyrics is the determining factor.

If you do collaborate with another songwriter to write a song, you may make any non-exclusive use you wish of the entire song, without the other songwriter' consent and even if the other writer hates the idea, subject only to the obligation to share the proceeds from any such exploitation of the song with the other writer according to his or her percentage ownership of it. This means, for example, that you can offer your song to your girlfriend for her new album without asking your co-writer for permission. What you can't do is withhold income the song produces from your co-writer, since each of you owns half the song and is, therefore, entitled to half the money it earns. And neither of you, without permission from the other, can grant anybody the exclusive right to use the song for any purpose, since that would tie up the song and limit the income it could earn.

Once your song is written, your copyright in it will endure until your children are grandparents, and during all those years no one can legally record your song without paying you, or change your music or lyrics, or base a movie or stage play on it without permission from you or your heirs. (In Chapter Two you'll find out exactly how long copyright protection lasts under various circumstances, and what you must do to protect your copyrights.)

The exception to the rule that the person who creates a work owns the copyright in it is a doctrine of copyright law known as "work-for-hire." This doctrine has little to do with ordinary songwriting, except in some cases that we will discuss in Chapter Three involving music publishers who try to take advantage of the unsuspecting songwriter by inserting work-for-hire provisions in song publishing agreements. However, songwriters who write advertising jingles or scores for slide shows and films often do encounter work-for-hire provisions that are legitimately a part of agreements to write such music.

When a piece of music or a jingle (words and music for use in an ad) is prepared as a work-for-hire, the client who commissions the music or jingle owns the copyright in it from the moment of its creation and is considered its author for copyright purposes. This exception to the "if you write it, you own it" rule recognizes the reality that exists in such situations, i.e., that the client specifies the sort of musical composition required for the purposes of the client and the composer or jingle writer prepares the composition according to those specifications, more or less under the supervision of the client.

The law requires that this departure from the usual rule be well documented to avoid situations in which a client simply assumes that he or she owns the copyright in a composition and the composer or jingle writer disagrees. Consequently, no piece of music or jingle can be a work-for-hire unless there is a written agreement, signed by both the composer or jingle writer and the commissioning client, documenting the fact that the composition was prepared as a work-for-hire. The copyright statute is explicit on this point, and the moral of this little tale about works-for-hire is "know what you are signing before you pull out your Bic."

Confusingly enough, there is an important exception to the requirement that work-for-hire arrangements be documented in written agreements. If you compose a piece of music or write a song as a part of the ordinary duties of your job, your employer owns the copyright in the music or the song, which is considered a work-for-hire. As a practical matter, there are very few jobs that involve any sort of songwriting as a regular duty of employment, but they do exist. A staff writer for a jingle company writes jingles as works-for-hire. The same is true for a staff composer who creates soundtracks for a film production company. The people who create musical compositions every day at the office already know who they are and that their employers automatically own the copyrights in their compositions. The important thing for you to remember is that, in ordinary circumstances, songwriters are not actual employees of music publishers and do not write the songs they create as works-for-hire for their publishers, even if they sign exclusive songwriting contracts.

Pop Quiz

The following quiz is designed to find out whether you've been paying attention. In this book, we operate on the honor system. If you get only one answer right, go back and read this chapter again. If you answer two questions correctly, pat yourself on the back. If you get all three questions right, you're beginning to think like a lawyer; lie down in a darkened room until you feel better.

Q. Jack' girlfriend Amy dumps him for a guy who wears a gold pinky ring and drives a Jaguar. Jack is miserable without her and convinced that romance only leads to heartbreak. He writes a song to express his misery and disillusionment. He calls it "No More Amour." The chorus is four lines of deathless poetry that come to him one night as he is crying in his beer:

Love is like a little bug,
With arms just like a lizard.
It twines itself around your heart,
And nibbles at your gizzard.

Jack records a demo of "No More Amour" in his buddy' basement 16-track studio and takes copies around to some music publishers. He also gives a demo tape to his cousin Sol, who works with the brother of the drummer for Rock City, a local metal band just signed by a little record company distributed by a big one. Jack forgets about becoming rich off record royalties when, after several months, it appears that nobody wants to publish his song, much less record it, and he meets another woman not named Amy who makes romance look interesting again. Until, that is, he hears the title cut from Rock City' first album, a song called "No More Love."

Jack can't believe the similarities between Rock City' song and his. Like Jack' song, "No More Love" is the lament of a man whose heart has been broken by a woman who left him for someone else. And the chorus!

Love is a worm
That eats at my heart,
And entangles my soul
In its tentacles.

Jack isn't sure whether worms have tentacles, but he is sure his rights have been violated. He makes an appointment with the only lawyer he knows who knows anything about copyright law to ask whether she'll handle the copyright infringement suit he intends to file against Rock City and starts wondering how he'll spend the money the judge will award him. Does Jack have a case?

A. Jack' lawyer may break his heart again when she tells him he doesn't have a case and she won't help him bring an infringement suit. Whether Rock City wrote "No More Love" after hearing "No More Amour" is immaterial; even if they did copy Jack' song, the only elements of it they stole are unprotectable by copyright law. Copyright does not give Jack exclusive rights in the theme of his song: the pain of losing a lover. Lots of songs written before Jack was even born employed exactly this theme; think of "I'll Never Smile Again" (recorded by The Ink Spots), "Heartbreak Hotel" (Elvis Presley), "Bye, Bye, Love" (The Everly Brothers), "It' My Party (And I'll Cry If I Want To)" (Lesley Gore), and "Yesterday" (The Beatles).

The similar chorus of Rock City' song won't make a case for copyright infringement, either. Jack' chorus and Rock City' chorus express the same idea, that of love as a parasite that gnaws at your innards. As we have seen, ideas are not protected by copyright. Copyright infringement does result when one person copies another' expression of an idea and the second expression is "substantially similar" to the first, but Rock City' song as a whole would have to be much more like Jack' to infringe Jack' song -- the similarity between the choruses of the songs is not sufficient to constitute infringement of "No More Amour" by "No More Love." (More about copyright infringement in Chapter Three.)

Even though Rock City' song title is nearly the same as Jack', because copyright does not include titles in its scope of protection, this similarity is likewise immaterial.

Jack' lawyer tells him that although it does seem likely that Rock City copied his song, they have copied only parts of it that are not protected by copyright. She says that because the verses of the two songs are very different and the only similarities are between the unprotectable themes, the unprotectable titles, and the similar (unprotectable) ideas expressed in the choruses, he has no copyright infringement claim against the band. Jack is bowed but unbeaten. In honor of his new girlfriend, he rewrites "No More Amour" as a love song called "More Amour," which is signed by a publisher and recorded by a bigger act than Rock City, who disappear without a trace after their first album flops, for which Jack is not even a little bit sorry.

Q. One afternoon at the restaurant where they're working as waiters until the world discovers they're really hit songwriters, Rob and Mike write a beautiful love ballad they call "Come to Me, Ramona." Rob picks out the melody on the piano in the bar before happy hour and Mike jots the lyrics on the back of a menu. After they polish the song a little, they decide they've written a hit.

Rob prevails on a friend who owns a studio to let them demo their song late at night when no one wants to book studio time. Then Rob starts to shop the tape. He plays the song for his mom; she says she thinks he shows definite promise and that "Come to Me, Ramona" is perfect for Julio Iglesias. Rob doesn't know much about Julio Iglesias except that his records sell, but that' enough to make Rob like him. Rob starts trying to get publishers interested in "Come to Me, Ramona" and recalls that his old college roommate once said he knew Julio Iglesias' valet.

Nothing happens for a month or two, but then one day a publisher calls to say he' interested in signing Rob and Mike' song. Rob can't wait to tell Mike.

As Rob is driving to work the next day, he hears an ad for a local carwash on the radio. The jingle sounds a lot like "Come to Me, Ramona"! The words are different (there' no mention of "Tony' All-Cloth Carwash" in the lyrics Rob wrote), but the jingle tune is identical to the melody of the song that was going to make Rob and Mike enough money to let them leave their jobs as waiters. Rob is steamed. He thinks some unscrupulous ad agency got hold of a copy of the demo tape and stole the song' melody. He can't wait to tell Mike.

When he sees Mike, however, Mike says nonchalantly that he already knows about the carwash jingle because he gave a copy of the demo to his brother-in-law Tony and told him he could use the melody for his jingle. Mike is surprised that Rob is angry. He sees nothing wrong with what he did because, he says, he was the one who wrote the melody.

Rob can't believe what he' hearing. "Come to Me, Ramona" has been turned into a carwash jingle and Mike did it and he doesn't even care! He remembers from his college music law class that turning a song into a jingle is creating a "derivative work" from it and that this is a right the law reserves to the owner of the copyright in the song. He figures that since he is one of the owners of the copyright in "Come to Me, Ramona," he should have some control over how the song is used.

But what really makes Rob see red is that Mike tells him he intends to keep the whole $500 Tony paid him for his melody, because nobody used Rob' lyrics for anything. Rob decides to consult a lawyer.

Does Rob have any reason to be angry?

A. Maybe Rob has reason to be angry because his ballad has been used to advertise a carwash, but not because Mike has violated his rights as joint owner of the copyright in it. The lawyer Rob consults is his Uncle Harry, who practices real estate law but knows something about copyright law because he once had a band. The first thing Uncle Harry tells Rob is to stop saying that he is going to "rearrange" Mike' face, because assault is illegal and what Mike did is not. Rob stops pounding on Uncle Harry' desk and begins to listen to what he has to say.

Uncle Harry tells Rob that he and Mike are joint owners of the copyright in "Come to Me, Ramona" because they both wrote the song and intended that their individual contributions, Rob' lyrics and Mike' melody, be merged into one song. This means that Mike, as one of the owners of the song copyright, can make whatever use he wants of the song, including allowing his brother-in-law to use the melody for an advertising jingle without consulting Rob. The only thing Mike cannot do without Rob' consent is to give someone the exclusive right to use the song, that is, tie the song up so that no other use can be made of it by granting someone an exclusive license to use it.

Rob is glad to hear, however, that Mike owes him $250. Even though Rob wrote the lyrics to "Come to Me, Ramona" and Mike wrote the music, each writer owns half the entire song, since they created their individual contributions with the intention that their melody and lyrics would be merged into one song. This joint ownership of all parts of the song means that any income produced by any use of the song by either of the joint owners must be split between them.

Mike pays Rob the $250, which Rob uses to get his guitar out of hock. "Come to Me, Ramona" is recorded by Garth Brooks, who sells a lot of records himself, and Mike and Rob are signed to an exclusive songwriting agreement by Uncle Harry, who decides to give up practicing law and return to his first love, music.

Q. Natalie comes across some great old acetate LPs in her parents' attic. They are her father' college record collection, and he gives them to Natalie along with an old phonograph that will play the 78s. The B side of one of them is a 1934 recording of a young Alberta Hunter singing "Two Cigarettes in the Dark."

Because she fancies that her voice is like Alberta Hunter' (circa 1934), Natalie wants to include "Two Cigarettes in the Dark" in her club act. Because she vehemently opposes smoking, Natalie wants to change the lyrics from the story of a woman who discovers that her lover is involved with another woman to the tale of a woman who rejects a man when she discovers he' a smoker; she intends to call her new version of the song "No Cigarettes or I'll Leave."

Natalie is not worried that she may be violating anybody' rights by changing the lyrics to "Two Cigarettes in the Dark." She remembers hearing that there was no copyright protection for sound recordings before 1972, and, since old acetate LPs are so fragile, she' sure she must own the only copy of the Alberta Hunter record in existence. Besides, she thinks anyone old enough to have written a song recorded in 1934 must have died before she was born, and anyway, she doesn't plan to touch the music of the song because she likes it just as it was written.

Is Natalie right about anything besides the evils of smoking?

A. Natalie may be a good singer, but she' a bad copyright lawyer. What Natalie proposes to do to the song on the old Alberta Hunter album is to create an alternate version of it, i.e., a "derivative work." Preparing a derivative work from a song that is protected by copyright is, as you will recall, one of the exclusive rights reserved to copyright owners. It makes no difference that Natalie does not plan to change the song melody; any significant change will be infringement if the song is still protected by copyright. This means Natalie should determine whether she will be violating anyone' copyright rights before she writes new lyrics for "Two Cigarettes in the Dark."

Natalie is correct that sound recordings were not eligible for copyright protection before 1972. There were some state laws prohibiting unauthorized duplication of sound recordings before 1972, but they weren't very effective in stopping record pirates from ripping off hit records. Congress finally figured out in 1971 that it needed to pass a nationwide law to stop record pirates; it did, and protection began in February 1972. But whether one could once have duplicated a sound recording without breaking the law has nothing at all to do with whether Natalie can change the lyrics to the song. Whether or whenever copyright began protecting the Alberta Hunter recording, the sound recording copyright is a copyright only in the recording of the song, not in the song itself.

Even if Natalie does own the only existing LP of the Alberta Hunter recording of the song, that has absolutely nothing to do with anybody' copyright rights in either the sound recording or the song. Ownership of a physical object that embodies a copyrighted work does not carry with it any ownership or other rights in the copyright itself. Even if all the recordings of "Two Cigarettes in the Dark" ever made had somehow disappeared, the owner of the copyright in that song, its publisher, would still have all the rights accorded every other copyright owner.

Although Natalie believes "Two Cigarettes in the Dark" is practically prehistoric, it was probably created when songs were protected for a period of seventy-five years, and unless it was written before 1918 it may still be protected by copyright. If so, any unauthorized exercise by Natalie of any of the exclusive rights of copyright will infringe the song. Whether the writers of the song have yet become stars in heaven is immaterial, since the duration of copyright in a song created before 1978 has nothing to do with when its authors died. What Natalie needs to find out is when "Two Cigarettes in the Dark" was first published and whether it is still protected by copyright. If the copyright in the song has expired, anyone, including Natalie, can create an alternate version without its publisher' permission because the song will have become a public domain song, available for use by anybody in any way. If the copyright has not expired, Natalie will be infringing it.

If you're as confused as Natalie is about all this, don't feel bad. Neither you nor Natalie has read the next chapter, in which we discuss the complicated topic "How long will my copyrights live after I myself am no longer 'fixed in a tangible form'?"

Copyright © 1995 by Lee Wilson