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MP3's copy right ?


Dan O

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Originally posted by dano:

Hello to all,

I know I can send a CD or tape to my home address and have a " poor man's copy right " ! How about sending a disk with an MP3 ? Dano

 

Seems to me it would be more protected than the poor man copyright. I`m inetrested in the outcome here. Casey

 "Let It Be!"

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I don't see why not - a performance is a performanc...and as long as it's sealed on an envelope which you mail to yourself, I don't see why that wouldn't hold up in court...

 

...of course, I'm no attorney, but it does make sense, doesn't it?

 

dB

:snax:

 

:keys:==> David Bryce Music • Funky Young Monks <==:rawk:

 

 

Affiliations: Cloud Microphones • Music Player Network 

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Hey guys, I am an attorney and our firm does a lot of copyright and copyright infringement litigation work. Yout poor man's copyright doesn't hold up in court. Just to clear up a common misunderstanding, you own the copyright the moment you reduce the music to tangible form, regardless of whether you choose to register it.

 

Registering the copyright with the United States Copyright Office gives you additional protections, including 1) the ability to maintain an action for copyright infringement, 2) the right to recover your attorneys' fees, 3) the right to recover statutory damages for infringements, and 4) a presumption that you are the original author and copyright holder.

 

Invest the $30 to file a copyright. You can copyright all your songs as a compilation using one copyright form and one $30 payment, so there's no good reason for not completing the filing.

 

The "poor man's copyright" only serves as evidence of the date of your claimed original authoriship. That's not really that helpful in a copyright case, and if someone else already filed a copyright for the same work, you will be out of luck.

 

Hope that helps,

Roland

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Originally posted by R:

Hey guys, I am an attorney and our firm does a lot of copyright and copyright infringement litigation work. Yout poor man's copyright doesn't hold up in court.

 

Why not, Roland? Isn't passing a sealed letter or package through the US mail with a postmark considered proof of dating? If not, I'd be curious why it isn't, if you don't mind filling us in...I've been laboring under the misapprehension that it was okay to do that...

 

dB

:snax:

 

:keys:==> David Bryce Music • Funky Young Monks <==:rawk:

 

 

Affiliations: Cloud Microphones • Music Player Network 

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Your only proof is that an envelope was mailed to a certain address with a postmark of a certain date. The contents can not be verified by the postmark.

 

IOW you can place anything you want inside that envelope. I can mail myself an envelope without sealing it. Once it comes back I can place anything I want inside. There it is - a sealed envelope dated ten years ago with a cassette or a score for a song I heard on the radio yesterday.

 

There should be a way to attach a file and copyright electronically *and* it should lower the cost of filing.

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Exactly, the problem is that a stamped envelope even sealed is not self-authenticating for evidence purposes. It's all about proof in accordance with the rules of evidence. You could proffer the envelope, sealed, stamped and dated and argue that proves you're the original author, but there are a few problems with that:

 

1. how will you prove that you are the author of what's inside, even if you can prove that you placed it inside on the date you say you did;

2. how will you prove that you placed what's inside on or about the date of the postmark;

3. how will you overcome my argument that you mailed yourself an unsealed envelope and then subsequently placed the work inside and sealed it at a later date;

4. how will you overcome the presumption that I am the author if I copyright the work before you do;

5. how will you maintain a copyright infringement action when you cannot even do so without a copyright registration;

6. how will you pay your attorney's fees and all the expert witness and related costs when you can't even spend $30 to do it right in the first place.

 

These are but a few of the challenges. If you can't pay $30 to protect a bunch of your songs with a registration, then there's just no way you're going to be able to deal with the litigation costs and attorneys' fees.

 

If you came to us with your envelope and no copyright, we would say that's nice and may be helpful at some point, but please deposit $25,000 AS A START to our trust account. These actions typically run $50,000 - $250,000 to prosecute and we will know that you're not going to be able to even start your action as a plaintiff or recover attorneys' fees without a copyright. So, the first thing we'll do is run down to the copyright office and register it, which you could have done in the first place for $30. Hopefully, the other side won't have already done this, which would make proving your case even more difficult and expensive.

 

The poor man way doesn't really accomplish anything because of the rule that you already own the copyright when you reduce the work to tangible form. REGISTRATION is what gives you all the good statutory benefits, and mailing it to yourself does not constitute registration.

 

Hope that makes sense,

Roland

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Although Roland already answered this question...I just wanted to add a couple of things passed onto me by fellow musicians.

 

ALWAYS clearly mark all demos, promo packs etc...copyright 20xx. That way there's no question in anyone's mind as to whether or not your music is indeed protected. You should even mark it before you receive your registration back. It can take 6-8 months to receive the actual certificate but you are legal the second the office receives your package. You can even send the form certified mail to expedite the proof. The cancelled check though, will come back within a month or two anyway.

 

Also, I've been told (Roland can clarify)that since mp3, aiff et al. are not tangible mediums, they don't count the same way a tape or cd would. Something to do with the copyright laws.

 

The applicable forms are all on line at the US copyright office. Thanks to someone on Roger's forum, I did it myself. I had no idea how important this step even was. ~nel

*

 

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Hey nelz,

 

The correct way to mark your music prior to an effective registration is as follow:

 

"Copyright Year Copyright Holder Name"

e.g. Copyright 2001 Nelz Smith

 

After registration the correct way to mark your music is:

"C in a circle Year Copyright Holder Name"

e.g. © 2001 Nelz Smith

Don't know how to get the c in the circle here, but you get the idea

 

I haven't seen a case argued on it yet, but I would bet that an MP3 file would constitute sufficient tangibility to qualify, though I don't believe that the copyright office accepts MP3's yet. This is again the difference between registration and the creation of the copyright itself. Even if the copyright office wouldn't accept an MP3 file for registration, you would still own the copyright in that file when you first created it.

 

Roland

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Thanks, Roland! I think I ommitted my name after the © symbol, instead I put the title of my works in quotes followed by the year. But my name is on all demos as the composer. I will use your legal format for all further submissions. I am stil protected though, right? (only half joking, you never know these days...)

~nel

*

 

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Originally posted by R:

Exactly, the problem is that a stamped envelope even sealed is not self-authenticating for evidence purposes. It's all about proof in accordance with the rules of evidence. You could proffer the envelope, sealed, stamped and dated and argue that proves you're the original author, but there are a few problems with that:

 

1. how will you prove that you are the author of what's inside, even if you can prove that you placed it inside on the date you say you did;

2. how will you prove that you placed what's inside on or about the date of the postmark;

3. how will you overcome my argument that you mailed yourself an unsealed envelope and then subsequently placed the work inside and sealed it at a later date;

4. how will you overcome the presumption that I am the author if I copyright the work before you do;

5. how will you maintain a copyright infringement action when you cannot even do so without a copyright registration;

6. how will you pay your attorney's fees and all the expert witness and related costs when you can't even spend $30 to do it right in the first place.

 

These are but a few of the challenges. If you can't pay $30 to protect a bunch of your songs with a registration, then there's just no way you're going to be able to deal with the litigation costs and attorneys' fees.

 

If you came to us with your envelope and no copyright, we would say that's nice and may be helpful at some point, but please deposit $25,000 AS A START to our trust account. These actions typically run $50,000 - $250,000 to prosecute and we will know that you're not going to be able to even start your action as a plaintiff or recover attorneys' fees without a copyright. So, the first thing we'll do is run down to the copyright office and register it, which you could have done in the first place for $30. Hopefully, the other side won't have already done this, which would make proving your case even more difficult and expensive.

 

The poor man way doesn't really accomplish anything because of the rule that you already own the copyright when you reduce the work to tangible form. REGISTRATION is what gives you all the good statutory benefits, and mailing it to yourself does not constitute registration.

 

Hope that makes sense,

Roland

Sounds like your saying that if I lose my notebook, and Joe Blow finds it and sends it to be copyrighted, I`m just screwed, the works is now his? Casey

 "Let It Be!"

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Hey Casey,

 

No, it's not his, but you'll have a heckuva time proving it's not. If he registers first there will be a presumption that the work is his, so you will have to expend a lot of money, time and effort to prove that he stole your work. That happens from time to time and you've probably read about some of the cases. It just takes a lot of resources to overcome the presumptions, so you're better off to rush to register and then you won't have to worry about it. :)

 

Roland

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Roland:

I was just wondering from your expertise point of view...what kind of infringement cases are most common? I really can't imagine a reputable record company releasing works without giving proper credit. Do you mostly deal with individuals who falsly claim work as their own or is it in fact big companies? I'm just curious as a musican what/who should we look out for. Also, how common are these infringement cases? I've heard the stories, but have never met someone in person with a case pending. ~nel

*

 

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Originally posted by nelz:

Roland:

I was just wondering from your expertise point of view...what kind of infringement cases are most common? I really can't imagine a reputable record company releasing works without giving proper credit. Do you mostly deal with individuals who falsly claim work as their own or is it in fact big companies? I'm just curious as a musican what/who should we look out for. Also, how common are these infringement cases? I've heard the stories, but have never met someone in person with a case pending. ~nel

 

Currently the bulk of our infringement work is companies stealing software code or graphic design infringements. We have dealt with multi-billion dollar companies and smaller. There doesn't seem to be a pattern.

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I've been told that from a business strategy standpoint it's better to simply put "copyright secured" on your work. That way your contact isn't wondering why your great song has gone uncut for five years before he even puts it on to listen. Assuming your work is registered would there be any compelling reason not to use this approach? Any thoughts Roland?
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Using the format specified by law eliminates the ambiguities of using a notice that is not provided for. One way ensures compliance and the other creates ambiguities that litigators could use to their advantage in defending an infringement action.

 

For example, your method specifies no year, so I would argue that my client believed that the work he/she used was created prior to yours, since you specified no date, and that your work was actually a derivative of the work used by my client. Your failure to follow the proper notice form created doubt in my client's mind concerning the year of creation and therefore, even if you did register, you failed to give adequate notice of the date of registration. Therefore, I would argue, damages should be reduced or eliminated.

 

That may or may not be a successful argument, and there are others that I would assert as well, but why give someone the chance to poke holes in your protection? If it's good music, it's good music, regardless of when it was created. The fact that it tool years to get it in the proper hands to appreciate it should not be an issue.

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