Intellectual Property Q&A

by The Law Office of Maya Chosé
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How does copyright work in the US?

(Does it automatically happen when the creator creates something? or need resister?) What kind of works you can declare a copyright for?

Copyright is a type of intellectual property protection rooted in the U.S. Constitution , and granted by federal law (for a limited time) for both published and unpublished original works of authorship fixed in a tangible form. Specifically, US copyright protection is available to the authors of original works including literary, dramatic, musical, and artistic works, such as songs, novels, movies, poetry, architecture and computer software. Copyright protection is automatic from the time that the work is created in a fixed form, registration is not required. Only the author, or an entity deriving rights through the author (such as an employer), can claim copyright. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

1. reproduce the work in copies or phonorecords

2. prepare derivative works based upon the work

3. distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending

4. perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

5. display the work publicly, 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

6. perform the work publicly (in the case of sound recordings) by means of

a digital audio transmission

Generally, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For works first created prior to 1978, the term will vary depending on several factors, including whether the work was published or registered prior to January 1, 1978.

What is a major issue in copyright in today's world?

There are many current issues that are relevant and could be discussed here, including piracy, music arrangers’ rights, outdated music licensing laws, the lack of a public performance right for terrestrial radio play for recording artists, etc. however, I will focus on the lack of pre-1972 federal copyright for certain sound recordings.

At a recent congressional hearing, which was part of broader efforts by the House Judiciary Committee to update copyright law, music recording and broadcasting industry representatives testified on performed music licensing laws. One concern raised by several, including the daughter of Johnny Cash, Roseanne Cash was the lack of federal copyright for pre-1972 sound recordings. Ms. Cash stated in part ‘if my father were alive today, he would receive no royalty payment for the digital performances of Walk the Line, written and recorded in 1956, but anyone who re-recorded that song today would receive a royalty.’

Although sound recordings were first given federal copyright protection in 1972, sound recordings made before February 15, 1972 remained protected under state law rather than under the federal copyright statute. Current law provides that pre-1972 sound recordings may remain protected under state law until February 15, 2067. After that date they will enter the public domain.

Due to a loophole in the law, digital services such as Sirius and Pandora argue they need not pay under their federal copyright license because recordings made before February 15, 1972 are covered by state law. However, they are not paying these royalties under state law either - claiming it does not apply to digital services at all.

On May 29, 2014 Congressman Holding introduced the RESPECT Act, which is intended to ensure legacy artists receive compensation from digital radio services that use their work by requiring these radios, that use the federal compulsory licenses to pay royalties for the pre-72 music that they play.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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