John DiGiacomo discusses the importance of getting a written agreement for collaborative works, such as music put out by a band, to protect your copyright rights, your trademark, and your royalties.
Welcome to Copyright Law Radio, sponsored by Traverse Copyright Law, internet lawyers specializing in copyright infringement, copyright licensing and copyright registration. Now here’s your host, Damien Allen.
Damien Allen: Welcome to Copyright Law Radio. My name is Damien Allen, and today we are continuing our conversation with Bob and with John DiGiacomo of Traverse Legal, PLC, on copyright nightmares in the music business, and we’ve been discussing a situation where our guest, Bob, was in a band and he was given a threat letter by a former band member trying to terminate the rights to the use of his own songs, as well as songs that were co-created with the former band members. Under the tenants of the Berne Convention, once a musical work is recorded, it is automatically protected by copyright law, is that correct?
Damien Allen: Now, Bob, you’re still the owner of the recording equipment and the files that were placed upon it, correct?
Bob: Oh, yes.
Damien Allen: And that is recorded in a digital medium?
Damien Allen: Does the digital timestamp, which is included in any kind of digital audio work station or digital recording equipment, also lend credence to Bob holding the copyright to this material, John?
John DiGiacomo: Digital timestamp would be a factor that you would look at. The digital timestamp would be relevant to who created the work and what the situations under the creation of the work, but priority, as far as priority of creation or priority of use, really has no bearing in copyright law. Really, what we’re looking for is who created the work? Is the work independently created? Is the work substantially similar to a work that’s being exploited by the infringing party?
Damien Allen: Does this copyright protection under the Berne Convention where it’s been fixed to a medium such as a digital audio work station or a CD, is that better protection than doing a short demo of this and mailing to yourself, which is also known as “the poor man’s copyright”?
John DiGiacomo: Well, they’re essentially the same thing. Under the Berne Convention, the signatories to the Berne Convention are granted certain rights of recognition for copyright rights in other countries. For example, if I am a U.S. citizen, and I created a copyright work, a song, for example, on a hard drive, and I send that work to a producer in England, and the producer steals that song and releases it, the effect of the Berne Convention is that my copyright rights that exist within the United States will be recognized upon creation as they are in England. So in effect, the Berne Convention allows you to enforce those copyright rights just as if they were created under the host country’s laws in another country.
Damien Allen: Well, upon receiving the threat letter, you, of course, got a little bit miffed and you’re trying to figure out what to do. What is your next step, Bob?
Bob: I would like to copyright my stuff. I think my goal is to first take care of my stuff, my songs that I wrote on my own, get them taken care of, copyrighted, so that I don’t have to worry about that. As far as the other songs, I have to actually speak to him, and he’s not the type of person that, when you get a threat letter, he’s not really going to want to talk to me. That’s the only thing I could really think of, because it’s either going to get copyrighted or it’s going to collect dust for 100 years or whatever, I don’t know.
Damien Allen: What would be the next logical step for Bob to take, John?
John DiGiacomo: I would agree with him that his next step is to register his copyright rights. The first step is always going to be register your copyright rights, and maybe reply to the threat letter as well. In replying to the threat letter, one of the options may be that you can assert a number of defenses to his allegations. I’m not familiar with what his allegations are, so I can’t comment on what those defenses would be, but as an attorney, I can tell you that in the response to a threat letter, the typical approach is to assert defenses and push the parties into either a negotiation or to come off strong and explain to the other party why they’re mistaken in alleging copyright infringement.
Damien Allen: We’d like to thank Bob for joining us today. He’s gone on other things. But what comes down to the point is, you’ve got a band where you’ve got members that are working together, it sounds like this situation would have benefited from an agreement written out or at least agreed upon before the project started even in the studio. You’re take on that, John.
John DiGiacomo: I completely agree. Not only should the band agreement cover copyright ownership, but it should cover royalties, and it should probably cover the use of the trademark as well. If you’re forming a band and you intend to exploit it commercially, it makes a lot of sense to sit down with the other band members and write an agreement and define what the relationship is. How are you going to payout? What is everyone’s contribution to the project? How, if in fact you make it big, are you going to use your band’s trademark, you band’s copyrighted rights to the fullest potential? It’s not the greatest thing in the world to have to sit down with people and talk business when you’re in a band because you just want to make good music, but when it comes down to it, you really should.
Damien Allen: Which brings me to the next story. In the late 80’s, early 90’s I was a member of a group in the Detroit area that started off with a nominal bit of success. We went into the studio. We cut our first album. Everything was going fine, and then suddenly a couple of the members decided they weren’t happy with the performance of the rhythm section due to the fact that they wanted to go out and do something the other two members didn’t. Myself being one of the members, it turned out that I was terminated. We did have a written agreement at the time about incorporation. Basically, we were an LLC at that time. The Articles of the LLC stated that if any member was terminated or left the band, that they lost all rights to the name of the band. I was no longer able to use the name of the band in any way, which was fine with me. When I left the project, I wasn’t wanting to steal the name, but there were songs I had co-written with other members and songs that I had written on my own in their entirety that were performed by the other members, both live and in the studio when we recorded the album. Shortly thereafter leaving the band, they replaced both myself and the drummer with two other members, and they continued on. About eight months after I left the band, I happened to be listening to a college radio station while driving through Detroit and heard my song, one that I created on my own, on the radio. I said, “Oh, that’s neat. I’m listening to my own song on the radio.” The back announcement as the band that I was in was currently in that radio station doing a live thing, the back announcement stated the song was written by people it wasn’t written by and performed by people it was not performed by, which caused me to call my lawyer and give a cease and desist request to the band, which luckily they did not argue with. Do you find this is something that comes up quite often, John?
John DiGiacomo: It is something that comes up quite often. Quite frankly, again, this is the way to deal with it is the written band agreement. Another issue is joint authorship. If, in fact, you were a joint author of that band, which we know that you are at this point, you may have been entitled, and you are, I can’t give you an off the cuff analysis, but you would likely be entitled to royalties for the exploitation of that song during that period. If, in fact, you expect or intend to even presume that someone may leave the band, it may make sense to get a written band agreement that defines what happens upon termination of the band or upon one member leaving.
Damien Allen: What’s the best way to go about deciding who gets what in the eventuality of a band split?
John DiGiacomo: The best way to decide who gets what is really just to sit down and talk about it. Once an attorney is brought into the situation, it makes things difficult because the party that the attorney represents is going to want to get his client more rights than other people in the band are going to want to put up with. The situation that we often see is that the party who hires the attorney first becomes the employer, and the rest of the members of the band become the employees. That’s certainly not the situation you want to be in if you are one of the so called employees or band members that feel that you’ve contributed just as much as the other party has.
Damien Allen: Quite often, having been a musician for 30 years, I can tell you it’s just like a marriage. You’re all in it equally, even though somebody may be carrying more weight at one time than another. You’re all in it together, so if you’re going to record, if you’re going to write songs together, sit down and talk about it. That is the most important thing you can do. Protect your rights as an author. Protect your rights as a songwriter. Be equitable to your band mates in the event of a split. Everybody will come out a lot more happy than they could. Thanks for joining us today, John, and sharing your legal advice with both Bob and the listening audience.
John DiGiacomo: Thank you, Damien.
Damien Allen: You’ve been listening to Copyright Law Radio. My name is Damien Allen. We’ve been discussing copyright nightmares within the music business from the band perspective. You can check out the continuing series here on Copyright Law Radio. Thank you for joining us today. Everyone have a great afternoon.
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