It’s always fun when your friends drop in for a podcast episode.
My guest this time is my friend, the talented and lovely Andromeda Turre.
Andromeda is a jazz singer whose latest project is called Growing up Jazz, a series about the influence of jazz on the American soul that runs parallel to her life story as the daughter of two jazz musicians.
Andromeda had some copyright questions. These questions came from the musician’s perspective, especially as we discussed the need for a copyright registration in the music and a need for a copyright registration in the sound recording (aka “sync license” when musicians license the recording). However, everyone who works in all media should find it informative and we want Andromeda back on soon.
BTW – nobody is allowed to use “poor man’s copyright” on the podcast anymore. That term is officially banned.
Anthony Verna: (00:03)
And welcome to the Law and Business podcast. I’m here with my friend Andromeda Turre. How you doing?
Andromeda Turre: (00:09)
I’m so good. And thank you so much for inviting me on to talk to you today.
Anthony Verna: (00:13)
Thank you for coming. Thank you for coming. And by the way, let’s tell everybody listening. as Andromeda is a jazz singer and where can everybody find your stuff on the web?
Andromeda Turre: (00:26)
You can find it at andromedaturre.com. I’m on Spotify. I’m on iTunes, wherever you download or stream music, you can find my music and, yeah, that’s it.
Anthony Verna: (00:36)
Well, thank you for coming. And so let’s talk a little bit about copyright stuff, especially for, for the musician, especially the musician inside. Well, you’ve got a musicians inside and outside of you, so…
Andromeda Turre: (00:55)
But there’s so many questions about copyright that I think so many musicians will want the answers to, and I know that you can help us out. So, I’ve got some questions for you today.
Anthony Verna: Hit me with the questions. That’s what we’re here for.
Okay. My first question is: Why do musicians need to copyright their music? It can be expensive. And I know that you can copyright things as a group or as an individual song. Give us the pitch as to why we should do this.
Anthony Verna: (01:24)
Sure. So, in the United States… Let’s start here… In the United States, without any kind of registration, if there’s infringement, you can’t file a lawsuit. So, I always say with copyright law, number one, it’s the entry for, for a lawsuit and really it’s a catalog as well. So, if you register every single song, you will be filing the composer’s name, the date that it was composed, chances are where. And so, in that particular aspect, as your career grows, as your catalog grows, your copyright catalog grows. So, you have that barrier court and you have a catalog. So this way, if somebody needs to license something from you… I’m sure a lot of musicians are also members of ASCAP, BMI or SESAC. And therefore, they’ve got to have that catalog in there for licensing as well.
Having the copyright registration is kind of the glue to making all of that work. Now also, besides just entering court, if you have the registration before any infringement happens, you are entitled to at least the potential for more damages. So for example, if you’ve registered your song and somebody copies it, whether it’s intentional or unintentional, but if somebody copies your song passes it off as their own, and you get no royalties from it, then you can file a lawsuit and you can ask for actual damages. In other words, the loss monies. You can ask for what we call statutory damages, which is an easier accounting of those monies. And you can ask for attorney’s fees as well, and this way copyright infringements would be worth it. If you don’t file that lawsuit, you will… I mean, if you don’t, excuse me, file your copyright before the infringement, you are not entitled to a statutory damages and you are not entitled to attorney’s fees. You would only be entitled to the actual money that’s lost. So, what makes a lot of copyright infringement lawsuits worth it is the ability to say attorney’s fees is damages.
Andromeda Turre: (03:58)
Right now, attached to that, I know that there are two different kinds of copyrights for that can be necessary for each song. So, if I write a song and then I record it, I need to copyright both the score, the actual song and the recording. Do we need to do that every time or…
Anthony Verna: (04:19)
Well, need is always a need is always an interesting question with copyright law.
Andromeda Turre: (04:27)
I know that it’s twice as much money if you have to register it, which can be an obstacle for a lot of musicians, especially during coronavirus times. So many of my musician friends are stuck at home and creating catalogs of work. And recording them at home and putting them out there. If they have to pay for both the song copyright and the recording copyright that can pile up quite quickly.
Anthony Verna: (04:51)
I understand that completely, but the short answer is yes. And the reason for that is because, it’s set up by statute. There are two separate types of recordings. There is the registration on the song on the score. However you’d like to think about that. And there is what some people colloquially call the mechanical copyright registration. So the registration on the sound recording itself. There are a couple of reasons for this. Number one. If you write something, you have the right to control who records it first. But if you record a song, other people can cover the song. And under the statute, there is a forced cover for the song. So that means anybody else can go and record the song. And then, either directly to the composer or through ASCAP, BMI, or SESAC take the sales and make sure that those royalties are paid. But your sound recording is going to be totally different than the sound recording from somebody else. But the system that the statute and the clearing houses have set up helped to alleviate this particular issue of you saying, no, you can’t cover a song. We allow songs to be covered and the royalties to flow as well, fairly, automatically. So that’s why the sound recording and the composition are two different copyrights.
Because it is still the
same composition, even if the recordings are different.
Andromeda Turre: (06:45)
And so then if I… because a lot of artists, like myself, think of albums conceptually. And so, say you write eight to ten songs that are like a group of songs for an album. Is it still better to copyright each song individually for the album? Or can you copyright it as a group of songs and what is the difference in court? So if somebody infringes on one of those songs and I have to go fight them in court, is it worse if I copywrote it in a group?
Anthony Verna: (07:15)
Well, my general philosophy is yes, it’s worse to do the collection as one collection rather than each one separately. And the reason for that is because number one, if somebody infringes a song, they’re not infringing ten songs. And, and I don’t want to open up the argument that there’s maybe from a fair use standpoint or something else to that effect that X percentage of a work was infringed instead of a hundred percent or something to that effect. So, number, so number one, I want if a song is infringed, I want to be able to say a song is infringed. The other part’s a little trickier and a little more subtle. And that is, is that if it’s a work that’s a part of a collection. And ultimately if you take ten songs as a collection, that’s an album or twelve songs or whatever the case might be. In the case where only the collection is filed, there still is the chance and you leave yourself open for the argument of, well, the song itself is not registered only the entire collection.
And, if you’re going to walk into court, I’d rather that you be rock solid about every single work, one work, one infringement, one registration, excuse me. Now, if you then you want to take the ten because they are in a collection and that collection is then registered because you’ve got other things as a part of that, like artwork, and, lyrics, credits, whatever the case may be. And then you file that collection as a whole.. That’s exactly how that’s exactly how the big boys are doing it because this way you have multiple registrations over a work and if somebody infringes, you hit them multiple times.
Andromeda Turre: (09:34)
I love it. Get all the money.
Anthony Verna: (09:38)
That doesn’t mean you’re getting multiple times of damages, but you try. You have to put that effort into it.
Andromeda Turre: (09:45)
That’s right. So now my question is, now that we have individually copyrighted, all of our works, how long does that copyright last us?
Anthony Verna: (09:56)
The fun question. So, under the 1978 act, and if you want answers for prior to 1978, trust me when I say I keep a cheat sheet on my computer, because that is so complex that it requires a chart. So, I can’t even keep, I can’t keep pre-78 in my head. So, after 1978, a registration on a copyright lasts either 75 years after the death of the author, if the author owns the copyright. Maybe it’s a little too long, but we’ll get to that. If a company or a corporation owns it 120 years after the date of registration,
Andromeda Turre: (10:36)
How come a company or a corporation has more rights than the composer?
Anthony Verna: (10:41)
But when you think about it, it’s 120 years from publication, from the date of registration, if a company, or a corporation. Seventy-five years after the death, right. Generally, we’re thinking that kind of evens out. But now the reason why it’s so long is because, in the mid-nineties, there was a guy you may have heard of his name is Sonny Bono. I don’t know if you’ve heard of Sonny Bono before.
Well, Sonny, if you remember, was also congressmen, Sonny Bono from California at the time. His big piece of legislation is of course the Sonny Bono Copyright Term Extension Act because in the nineties, a little company called Disney had a little thing called Steamboat Willie, that was going to be entering the public domain. So the copyright term extension act extended any and all copyrights at the time, out to the term that we say that we stated that it is now. The question is that I think it’s, I forget if it’s 2021 or 2022, but, Steamboat Willie will be expiring and going into the public domain. And it doesn’t seem as if Congress wants to do anything, but I don’t think that extending the length of copyrights is going to be high on the list of priorities. Now…
Andromeda Turre: (12:16)
So then does it go into free domain?
Anthony Verna: (12:17)
So, we’re talking about not the character, but we’re talking about the work itself would go through the public domain. That’s going to have some interesting long-term effects, but, just to let you know, there were people who did sue stating the length of the copyright term extension act was too long. And the Supreme court ruled nine to nothing that the constitution says that it’s for limited times, and as long as there’s a number on it. So that year, it says 120 years for the life of the author, plus 75. Those are definite times. And therefore, it is constitutional.
Andromeda Turre: (13:03)
So my question in following up is that when things go into public domain, when do they go into public domain? Is there like a cutoff year where like you can cover any works composed before then? Or do you always have to check to see if it’s like 75 years after?
Anthony Verna: (13:23)
Well, you do need to check because, like I said, any work that was done before 1978 is under a totally different scheme.
Andromeda Turre: (13:35)
Right. But I mean, I sing jazz. So, the popular jazz songs were written like between 1920 and 1960. So, if I just do a quick Google search to see what year, is there like a cutoff where I know, Oh, this song was written in whatever year I can use it.
Anthony Verna: (13:56)
Yeah. Probably everything before 1920 is going to be in the public domain. Between 20 and 77, seriously, the chart is ridiculous.
Andromeda Turre: (14:11)
What about classical music that was written, like, if I wanted to do like a Beethoven song.
Anthony Verna: (14:16)
Well, sure. I mean, obviously they’re there in the public domain, so yes. Yes. Well, I mean, copyright law, might have started shortly after Shakespeare with what we call the statute of van in the fifteen hundreds, but it surely was not robust and it surely wasn’t meant to last 300 years, if anything, even today we’re talking about how today’s length is maybe too long. But yeah, stuff like that is certainly in the public domain.
Andromeda Turre: (14:49)
Does my work have to be published before I can copyright it?
Anthony Verna: (14:54)
No, you can register your copyright before you publish your work.
Andromeda Turre: (14:57)
And then how long does it take once I submit my paperwork? So, if I fill out my paperwork and, well, it’s not even paperwork anymore, it’s all online. If I type in my submission and hit it and say, it’s Monday, and my album comes out on Friday, I’m sure that it takes some time to process it. If somebody infringes my music, would I be protected from the date that I filed it?
Anthony Verna: (15:26)
Yes, you’re going to be protected from the date that you filed it. What I would say is that if you think that there is infringement already happening and then the question is, is it too late? But if there is, you probably should spend the money for an expedited guaranteed registration, you know? And basically what I mean by that is hopefully you will get your expedited registration in a couple of weeks rather than…. I mean, it’s expensive.
Andromeda Turre :
What’s the normal time?
It’s supposed to be three months, but let’s be honest it’s the federal government. The Library of Congress is the most well-funded part of the federal government as well-funded as it is. And you know, we’re still, of course, in a pandemic where a lot of people are working from home and while believe it or not, the Library of Congress has done a good job of making the transition, not as good as the Patent and Trademark office, but the Library of Congress has made a good job of having that transition.
There still is a lot of actual paper that the Library of Congress does deal with. So, it’s probably going to be a little longer right now the normal times, but even still normal times, isn’t always a guaranteed like I’ve had, I’ve had stuff come back to me a year later and I’m like, “Oh, I totally forgot I filed that.”
Andromeda Turre: (17:05)
Yeah, that’s crazy. How can I get an international copyright? And is that even necessary?
Anthony Verna: (17:13)
Country by country by country. There is no such thing as an international copyright and international trademark.
Andromeda Turre: (17:23)
That’s crazy. So, if I write a song and I register it with the Library of Congress here in the United States. I’ve registered my score and I’ve registered my recording and someone in Poland decides I’m going to infringe this song. There’s nothing I can do with it.
Anthony Verna: (17:40)
Yes. So, what you need to look up are the rules in every single country, by the way.
Andromeda Turre: (17:55)
There’s a lot of countries out there.
Anthony Verna: (17:57)
I know that. Now in some countries, and this does include… let me take back my second half of that statement that was going to say, but in many countries, copyright protection is automatic. There isn’t a registration that the United States requires. So, in your specific question, since I’m not a lawyer in Poland, I don’t know the answer.
Andromeda Turre: (18:24)
Well, I just pitched Poland because there’s a jazz radio station in Poland that’s one of the few international stations that plays my music. So that’s why I picked that country.
Anthony Verna: (18:33)
But what I would say is many European countries do enforce copyright protection without the registration. So, like I said, you’ve got to be able to check every country for their rules, but, I know the United States is a bit of an outlier on the requirement for registration, but that’s how the US statute has always been.
Andromeda Turre: (18:59)
Okay. Is there a way to copyright your music for free or I’ve heard of this poor man’s copyright of it?
Anthony Verna: (19:05)
No, no, no, no, no, no, no, Nope, Nope. I’m stopping you there. No, I love you my friend, but yeah no.
Andromeda Turre: (19:14)
That was a very totalitarian answer.
Anthony Verna: (19:19)
I don’t mean to be totalitarian, but, no, the only way to get the copyright registration is to register.
Andromeda Turre: (19:30)
Okay. And can I use a stage name to register my copyright because I still work under my maiden name, but legally I have a different last name. I have my husband’s last name.
Anthony Verna: (19:40)
Yes, you can. You can register under a pseudonym. You probably will be filing it under both names at that point, but, you know, in your particular case, I wouldn’t sit here and say that that’s a pseudonym. I mean, it’s your maiden name? That still is your name.
Andromeda Turre: (20:02)
Legally. It’s my maiden name. My last name is my middle name now.
Anthony Verna: (20:06)
Yeah. So, I mean, that’s not that that’s not that big of a deal. I mean, you could probably still, you could still register everything under your maiden name. That’d be okay. If somebody does go under an actual stage name, they can file, but you’re probably going to be filing under both the stage name and your real name.
Andromeda Turre: (20:28)
Okay. And then there’s copyright and there’s trademarks and there’s patents. What is the difference?
Anthony Verna: (20:36)
Well, as you can tell, we’ve been talking about music here. So, copyright law generally protects works of art. These days we throw computer programs in, because code kind of, if you take code and then just look at it, it’s words on a page. It might not mean anything unless you can read it yourself, but it’s words on a page. So, we treat that as a literary work, just like a book or a magazine. But traditionally, copyright law protects works of art, trademark law protects branding. Anything that you think would fall under branding, that’s trademark and patents protect any kind of inventions. That’s what we would call a useful invention.
Andromeda Turre: (21:17)
Can you copyright ideas or like intellectual properties, say like a curriculum that you come up with?
Anthony Verna: (21:25)
There is no protection for an actual idea. Copyright law protects the expression of the idea, and that’s the best that you’re going to be able to do. So if you create something, basically you have to be able to put it on a medium for copyright law to work its magic.
Andromeda Turre: (21:47)
Wow. I never knew that. I know a lot of musicians right now are making money by teaching online and they’ve come up with their own individual courses. There’s no way to make sure that another musician doesn’t watch their course and then take their idea and sell it to other people?
Anthony Verna: (22:06)
Let me answer that question this way. If somebody registers the either the video for that curriculum for that course or their notes for that course, and I would recommend to file both actually there’s going to be protection for it. But the question is, is how strong is that protection? Because when you’re dealing with teaching how things work and you’re dealing with the actual way that things work and with music, I mean, it’s all, you know, to take it to a physical level. It’s all based on the wavelength of every single note. And you know, a sixth is a sixth and that’s not going to be changing. And a fifth is a fifth that’s not going to be changing. It’s true. And no matter if Juilliard requires you to start at music theory one, if you’re going in for a master’s or doctorate, none of those concepts are actually changing.
So how many ways are there to say and state those particular ideas? And therefore the copyright might only protect this particular expression of those ideas. In other words, that specific curriculum, so that if somebody goes and uses the exact words and it’s basically plagiarism, you know what we would colloquially define as plagiarism? Okay. Then you’ve got something there. If there’s enough change that it’s a different expression of the same ideas, or how many ways are you going to express the same ideas? That’s, that’s going to be a big question in the enforcement of something like that.
Andromeda Turre: (24:11)
Great. And then I have another question. I know that there are some musicians who own or have copywritten or trademarked their likeness, their own image. Is it necessary to do that? And what does that mean? If there’s a musician that has copywritten their image and you take a selfie with them, can you post it on your Instagram?
Anthony Verna: (24:38)
When you’re dealing with photographs, there are generally with a lot of photographs, multiple rights involved. So there’s the right of the photograph, you know, the copyright in the photograph. And if there are people in the photograph, every single person has a right to his or her own name, image, and likeness as a phrase you’ve probably heard.
Andromeda Turre: (25:02)
Everyone does, or only if they’ve specifically…
Anthony Verna: (25:06)
Everybody does. Everybody does. But, how those are treated by state laws, because that’s not a federal issue are totally different between yes, if somebody is famous or if somebody is not famous. So it’s going to depend on who’s in the photograph and what the purpose is of the photograph. So in some situation like that, if it’s you and somebody famous who you guys were at a show together or something, and you took a picture and posted it on Instagram and you said, look, I had a fun night. Great. If you’re taking the picture of somebody walking out of the pharmacy and that person is holding bags from the pharmacy, cause that person just shopped at the pharmacy and then the pharmacy buys the photograph from the paparazzo who took it. And then, start saying, look who shops at our pharmacy? Yes. This happened two years ago. And yes, then that’s going to be a violation because of the name, image and likeness statutes, most likely. So yeah, they’re going to be depending on purpose, depending on who it is, there’s going to be a whole bundle of rights in there too.
Andromeda Turre: (26:24)
I just learned that I own something for free. So thank you for that. I’ll go finish copyrighting all my songs.
I didn’t mean to scare you.
It didn’t scare me. You informed me and I appreciate it.
Anthony Verna: (26:41)
Look, thanks for coming on and asking a bunch of questions. All right. Well, this has been the Law and Business podcast. You can visit Verna Law at VernaLaw.com. Andromeda, your website one more time.
Andromeda Turre: (26:54)
Anthony Verna: (26:56)
There you go. Thank you, my friend, for coming on.