Legal Blog

Saturday Side Hustle: Copyrights and Writing Music

Music is important to many of us for many different reasons. To some of us, it is a language we want to learn how to speak with others who want the same. Learning that language allows us to be creative and express thoughts and feelings in a way that is designed to reach the people who understand it. It is a creative outlet that can be very rewarding, and for those with the talent and the gumption to take it seriously, it can become a business in some way shape or form.

There has always been a perception that creative people in the business of music aren’t good at business, and that that enables business people who aren’t necessarily that creative to harness some level of control over what becomes financially successful and what does not. It’s the classic story of people in that business “needing each other” to succeed. There are examples, but there are also examples of creative geniuses who have taken the bull of business by the horns and gained and understanding of how to control and monetize their outputs. I love reading those biographies.

It is an undeniable truth in the business of music that nothing happens until somebody creates something, that something is a work of authorship, and at the outset, that work of authorship is a musical work, including any accompanying words. The U.S. law that exists to protect such works of authorship is known as copyright, and copyright protection begins when an original work is fixed in a tangible medium of expression “from which it can be perceived, reproduced, or otherwise communicated”. The medium of expression can be “now known or later developed,” so Congress can try to keep up with technology.

Let us assume hypothetically that I “write” a song. “Write” being in parentheses because quills and staff paper are not necessarily the modus operandi for most artists today. In fact, maybe by “writing” I mean that I can hear it in my head and just haven’t bothered to document it in any tangible medium yet. Do I have a copyright in the work inside my head? No!

Well, what if I don’t, and what if one day I’m outside doing a little spring clean-up in the back yard, and with no one around I decide to start belting said song in my head out loud. I still haven’t fixed it in a tangible medium of expression, but what if my neighbor decides to record it using his smartphone from the other side of the fence and then runs off and sells it. Well, he’s the first one to fix my song in a tangible medium of expression, and it’s original, but is it original to him?

Interestingly, the Copyright Act is full of definitions, but absent among them are “work” and “original”. That means we are left to ourselves and our dictionaries to decide. Well, the Copyright Office has told us the copyright initially belongs to the author: me.

 

For more information on this topic, please contact Scott Lloyd at slloyd@offitkurman.com.

 

ABOUT SCOTT LLOYD

slloyd@offitkurman.com | 301.575.0357

Scott Lloyd is a registered patent attorney who specializes in intellectual property counseling and commercialization work. He has served as a technology commercialization specialist and advisor to companies in a diverse array of markets, including biotechnology, pharmaceuticals, medical devices, food and beverage, specialty chemicals, technology, and engineering. In addition, Mr. Lloyd spent ten years as in-house general counsel to small and mid-sized companies, where he managed corporate matters and resolved commercial disputes in addition to intellectual property strategy, and now serves in the same capacity for entrepreneurial clients. He serves as counsel to small and mid-sized business owners seeking to implement growth strategies and succession plans.

While in house, Mr. Lloyd has also contributed to the successful formation of international affiliates of domestic businesses as well as a $400,000,000 business acquisition.

 

 

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the mid-Atlantic region. With over 185 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients along the I95 corridor in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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