Poor man's - Not in the USA

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Poor man's - Not in the USA

Post by cmaracz » January 3rd, 2005, 7:39 pm

These could be questioned that can be answered by one sentance, or require detailed explaining. I'm sorry, I don't know which. But I'd sure like to hear it.

1. Are your own arrangements of traditional songs elligable to be copywrited if they are truly different than existant arrangemnets, ie. complete overhaul in rhymm pattern and some change in melody etc?

2. Someone registers a copywrite with the government while you have secured the work under "poor man's method" or via publication. Who really owns the right to the work?

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Post by A-J » January 4th, 2005, 12:47 am

1-No. Arrangements are just... arrangements. The basic song is still the same, the person who originally wrote it retains copyright: most songwriters don't arrange their material anyway.

2-Poor man's method (which really should not be called that) prevails as long as you can prove that you wrote it first. Copyright always belongs to the person who wrote it no matter what. As long as you can prove it, that is.

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Post by Nick » January 4th, 2005, 3:49 am

See the other post on poor man's....it doesn't hold water in the US, but it does elsewhere, UK and Canada.

If you are in the US, plan to make a living off your songs and think you've written something worth stealing, get the copyright registered.
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Post by A-J » January 4th, 2005, 9:02 am

Actually, it does hold water in the US and everywhere else in the world for that matter. Copyright registration is an option but not an obligation. Basically, as long as you can prove you wrote it, you're safe. Remember that most posts in the forum in this matter are by people who think they know what it's about or by lawyers who believe they can get around any law.

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Post by Nick » January 4th, 2005, 9:55 am

It may work elsewhere, but not in the US.

" Remember that most posts in the forum in this matter are by people who think they know what it's about or by lawyers who believe they can get around any law." - A-J

Actually I'm neither of those, so I decided to stop taking anyone's word for it and find out for myself. So the following is according to the US Copyright office, two judges and an entertainment attorney, (paid for from my own pocket). Also I took the liberty to have this looked up on an online case law database. There in not one, zero, zilch, cites to be found anywhere of a successful copyright infringement claim based on poor man's in the USA. (*turns out there is a reason for this...see below)

First off, a caveat. This is not legal advice. Go see an attorney yourself. Don't take my word for it. I am not an attorney.

Here is the text from the other post.


*****************************
Something to consider, from the US Copyright office:

http://www.copyright.gov/circs/circ1.html#note

* "Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin."

So if you want to take it to court, the envelope won't cut it. I've posted this question on a legal board and haven't seen any cases cited for poor man's.

I'll be talking to an entertainment attorney in the next couple of weeks and I'll ask him.

Your best bet?

1. Don't take legal advice from non-attorneys
2. If you've written something you are worried about, do it the right way.

(In the US, this mean's register it)

Part II

From the US Copyright Office's FAQ:

I've heard about a “poor man's copyright.” What is it?

The practice of sending a copy of your own work to yourself is sometimes called a “poor man's copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

http://www.copyright.gov/help/faq/faq-general.html

"no provision" in this case means it isn't a binding legal document and has no legal standing. - (Opinion of an attorney, makes sense to me too)


Now I understand that it may work in countries other than the USA.

Here is some UK info...

http://www.intellectual-property.gov.uk ... rights.htm


Copyright protection is automatic as soon as there is a record in any form of what has been created (there is no official registration). However, steps can be taken by the creator of a work to provide evidence that he or she had the work at a particular time. For example, a copy could be deposited with a bank or solicitor. Alternatively, a creator could send himself or herself a copy by special delivery post (which gives a clear date stamp on the envelope), leaving the envelope unopened on its return. A number of private companies operate unofficial registers, but it would be sensible to check carefully what you will be paying for before choosing this route

It is important to note, that this does not prove that a work is original or created by you. But it may be useful to be able to show that the work was in your possession at a particular date, for example where someone else claims that you have copied something of theirs that was only created at a later date.

****************************


It doesn't work in the USA.

One more time for those of you that may have trouble hearing:

It doesn't work in the USA

Poor Man's is not guaranteed acceptable as proof of creation or possession. It is not a magic bullet. I'm not comfortable telling you it works anywhere else either. I for one haven't checked out whether it works in North Korea, China, Myanmar, Ukraine, or Madagascar. It seems it does work in the UK, unless you forget to use special delivery, according to the Intellectual Property dot Gov site....and are they the group that sets the defacto standards? I don't know.

So check your local laws.


You can do whatever you want. I took the time and paid the money to get my information. I have put factual links in my post to direct you to the correct information, but that's as close as I can get you. You can lead a horse to water.....

So if you are in the USA and you want to go and mail it to yourself, feel free. Good luck in court.

This next section is from the notes taken talking to the Entertainment Attorney.

In the end it comes down to proving you possessed the work at a particular instant in time.

"The best proof in the US is registering it. Everything else is suspect, including poor man's." - attorney quote

IMHO, Instead of poor man's I think you'd be better off having the lyric sheet notarized, (by an upstanding member of your community, preferably no relation to you), then mail it special delivery in an envelope addressed on the back side. But you'll still have to register the thing to sue someone.

But then you are paying $5 to notarize it, plus your time, plus your $5 to mail it. Heck, it's only $20 more to register it and you can register a complete collection of songs at one time. You can't do that with Poor Man's because you have to have each song in a seperate envelope.

This next section is from my notes when I spoke to the judges.

According to the Judges I spoke to, anything short of registration may or may not be useful in proving ownership at a particular time. But both judges said an envelope simply mailed to yourself would not be convincing or compelling evidence. Registration is legally acceptable proof of possession at a particular time. Everything else is at the whim of the judge to decide if it meets his definition of proof.

It's just easier and safer to register it.

Just for kicks, here are the answers from the judges to this question:

(BTW, everything here was presented as a hypothetical situation and should not be construed as legal advice)

What would you accept as proof of ownership at a particular moment in time:

A sealed self addressed envelope containing the lyric sheet: No, No
A sealed self addressed special delivery envelope: maybe, with other supporting evidence, it depends
A notarized dated document sent special delivery: maybe, it depends
A lyric registered with the copyright office: Of course, Yes

and

Would you consider a case of poor man's vs registered copyright in the US?

You mean assuming we could ignore the legal requirement to register prior to bringing suit? No, not without considerable, (one said "Overwhelming") additional evidence.

Looking over my notes I have one more judge question here.

Assuming you could ignore the need to register prior to bringing suit, would you ever take poor man's by itself over a registered copyright? No, absolutely not.

********************

So that is the result of my research, not just my opinion, but the opinion of two judges,an attorney in the entertainment field and documentation from the US Copyright Office.

Since I live in the good old USA, consider me an-ex poor man's user.
Last edited by Nick on July 10th, 2005, 5:48 am, edited 4 times in total.
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Pet

Post by Pet » January 4th, 2005, 5:13 pm

Wow Nick, you hired a lawyer - You ROCK!

Wasn't there some talk/ general request for a lawyers' assistance on this thread to help clarify some of the issues frequantly raised about copyright law and creative rights etc?

What happened with that?, Is it still worth looking into?

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Post by Nick » January 4th, 2005, 5:24 pm

What's $150/hour between friends. He gave me a $50/hour discount because I was doing research.

We did have an attorney in the other thread, I have no idea what his specialty is though.

Actually I take that back. He is an entertainment attorney who represents Musicians, and here is his post:

*****************************

I'm an attorney who just stumbled upon this topic. I would NEVER recommend this method to any of my clients.

Here is a quick blub on copyright:

A song is copyright, not upon its creation, but when it becomes fixed on some tangible medium. That could be recording the song on tape, writing the music and lyrics out as sheet music, or recording it into the hard drive of your computer. However, the use of this copyright is extremely limited. It serves as protection against someone who has actual knowledge (or can be proved to be someone who would reasonably know about the song) of the song. Someone who knows about the music you created cannot blatently copy your material. However, if you're in New York and a band in California, just by way of chance, writes a very similar song, then there will be no violation of your copyright. They had no knowledge of the song you wrote in NY, and the court will find no reason to believe that they should have known about your music when you are so far apart.

A federally registered copyright give "constructive notice" to everyone in the world. If you music is on file with the Library of Congress, then you could sue for infringement if a similar song is written after the point of time that your copyright is registered.

I'm an attorney and I don't know what the envelope method would prove, especially due to the fact that you can mail an unsealed envelope to yourself. Perhaps some notorization would help here, but I would always say that your best bet is to follow the proper steps to protect your music via the government.

Brian K. Carvell, Esq
bcarvell@musicianslegalrep.com
http://www.musicianslegalrep.com


**************************

Check out their website

So make that two entertainment attorneys, two judges, and the US Copyright Office that say "not in the USA".
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Post by Chris C » August 1st, 2005, 1:17 am

Um... why isn't this post a sticky Nick?

It seems to contain essential information about the main subject of this part of the forum. It's not as if the top of the page is exactly crowded with stickies - shouldn't this be numero uno?

It's shame when information of that quality just slides back into the general ooze.. :(

Here's a link to someone else who supports your view. Their 10 point recommendation is worth a read. :D

Click to go to Entertainment Attorney site


You're not just being modest are you Nick? Sticky please! Sticky!

EDIT: Added a few useful links to sites with info about copyright, performance royalties and so on. Most have these have been nicked straight out of posts elsewhere by NoteBoat (thanks Tom :) Hope that's OK )

AUSTRALIA

APRA are a mine of info about Oz copyright, plus how to pay and/or receive royalties, etc.

CANADA:

Canadian Intellectual Property Office

USA:

US Copyright Office

ASCAP FAQs
BMI FAQs
SESAC FAQs
Last edited by Chris C on October 12th, 2005, 7:04 pm, edited 2 times in total.

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Nick
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Post by Nick » August 1st, 2005, 4:45 am

Thanks Chris, good point.

It is now sticky.
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Post by Chris C » August 4th, 2005, 8:36 pm

Thanks Nick,

Good to see it where we can all find it later, when we've written our first hit and want to know how to proceed. :D

I wonder if anybody has ever tried claiming posting on a forum like this as modern form of "Poor man's" ?

After all, there's often a link to an mp3, the posts are dated and edits are recorded. It could well be described as a public performance in front of witnesses. One could even put some kind of standard copyright ownership assertion in your post. :?

But, obviously, nothing beats proper registration, for the reason that Brian Carvell quoted - songwriters in other places could say in their defence that they had no way of knowing that their song was very similar to yours. It's much clearer cut when everyone is using the same easily verifiable registration system.

I don't think that many judges would be too comfortable with "modern devilry" like computer forums, but in the case of no registration by either party, a post here might just be better supportive evidence than nothing at all though. :)

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Post by NoteBoat » August 5th, 2005, 7:49 am

The point of methods like the envelope thing is to prove authorship on or prior to a specific date. I've never heard of envelopes working, but I do remember a story where a band had appeared on a televised soundstage program, and the tape of that broadcast was used as evidence in a copyright case. I don't remember where I heard that, though... so it might be apocryphal.

I don't think judges have a problem with electronic evidence - they're using e-mails in trials every day now - they just have a problem with 'evidence' that doesn't prove your claim. A postmarked envelope proves you mailed that envelope - it doesn't show what was in it. A broadcast tape, or a time stamped electronic posting attaches the date to the contents instead of just the wrapper - so you can show a claim of authorship on that date.

You'd still need to prove the other guy had access to it, though, or you won't have the second part of your case - that they didn't develop theirs independenty, but took it from your work.
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Re: Two Possibly Simple Copyright Questions

Post by dsparling » October 7th, 2005, 6:16 am

cmaracz wrote:These could be questioned that can be answered by one sentance, or require detailed explaining. I'm sorry, I don't know which. But I'd sure like to hear it.

1. Are your own arrangements of traditional songs elligable to be copywrited if they are truly different than existant arrangemnets, ie. complete overhaul in rhymm pattern and some change in melody etc?
To clarify...if you mean "traditional songs" as in songs that are in the public domain, then yes, you can register a copyright of a new arrangement. And make sure you base your arrangement on a work from a public domain source.
http://www.copyright.gov/circs/circ14.html

DERIVATIVE WORKS

A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a “derivative work” or “new version.”
http://www.pdinfo.com/identify.htm

"Anyone can create and copyright an arrangement of any music in the public domain."

If the song is still under copyright protection, then it's up to the copyright holder.
http://www.copyright.gov/circs/circ14.html

WHO MAY PREPARE A DERIVATIVE WORK?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

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Post by NoteBoat » October 7th, 2005, 7:17 am

Derivative work gets kind of dicey in musical arrangements. If I wrote a dozen brand new songs about the life of a pinball player, and called the set "My version of the Tommy", it's a derivative work... even though the music is all mine. Townshend could sue me for copyright violation for doing a derivative work without permission... because it's new (so I can claim copyright royalties) but it wouldn't have happened without his work (so it's derivative). I'd also need permission to cut a tune about Harry Potter, even though he (or Rowland) has never had anything released musically.

On the other hand, if I want to record a reggae version of Pinball Wizard, I don't have to ask. That's because he's still going to get the royalties that relate to the copyright under a provision called 'compulsory license'.

In music, the copyright owner can control only the first release of a work. If I want to cover an unrecorded song by Bob Dylan, I need him to agree to it. If he's already recorded and released it, or if he's given anyone else permission to do so and it's already been released, it's fair game.

This is from the US Copyright office Circular #73, "Compulsory License for Making and Distributing Phonorecords":

May a new arrangement of a copyrighted work be made for the recording?

Yes. The compulsory license includes the privilege of making a musical arrangment of the work "to the extent neccesary to conform to the style or manner of interpretation of the performance involved". However, Section 115 also provides that the arrangement "shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work... except with the express consent of the copyright owner.


So if I cover Pinball Wizard, Pete gets all the songwriter royalties, but I don't need to ask first - and I'll still get the performance income from my own version.

To do an arrangement legally, you need to try to locate the owner of the copyright. If you can, you send a notice of intention within 30 days of making your recording (but before distributing any copies). Then you need to send a monthly accounting of sale, and the royalties specified by law.

If you can't locate the copyright owner, you send the notice to the copyright office - and you send them the accountings and royalties every month. If they ever locate the writer, they give him/her the cash.

Do most people ask permission to do arrangements? Sure! That's because if you negotiate a deal, you negotiate the royalty. If you don't ask, you must send the amount required by law... and you can probably cut a much better deal yourself.

Do people say "screw it, I'm doing it without permission"? Sure. Paul Simon said he hated punk music... so the Diodes covered his tune "Red Rubber Ball" without his consent. It had already been released, and they followed the procedure; there was nothing he could do about it.

If it hasn't been released yet by anyone, you need permission. You even need your own permission!!! Bob Dylan used that tactic... the first recording of "Mr. Tambourine Man" was done by his label, Columbia, at a live folk concert. Two other groups (The Brothers Four and the Byrds) immediately recorded their own versions.

But Bob didn't like the recording - so he refused to allow Columbia to release it under his songwriter's first release copyright!

That kept the folk festival recording off the shelves. It also kept the two covers off the shelf (neither had his permission) until Dylan recorded and released his own studio version.

Do people cover/arrange a tune and not tell anybody? Yeah, that happens. If you make any money at all or get any publicity, you'll be wearing a huge target. DJ Dangermouse snagged some Beatles samples without asking, and released his Grey Album. Pressed 3000 copies. Entertainment Weekly named it Album of the Year for hip-hop. Album of the year and you can't buy a copy - there's an infringement injunction against him. He'll end up losing a ton of money in court. Probably be the only album of the year in history that only sells 3000 copies. They go for $150 on the resale market as a collectable now... and he doesn't get a dime of it.
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Post by dsparling » October 7th, 2005, 7:35 am

Isn't there a difference between "covering" Pinball Wizard and actually registering a copyright for a new arrangement of it - say for solo fingerstyle guitar or whatever? My understanding is exactly as you state...if I want to record a previously released song that is still under copyright, then yeah, I can record and release it w/o the copyright owners permission (not required) or knowldege. That's a licensing issue. But I can't register a copyright of my arrangment at all without the original copyright owner's permission (which is why I think there are the "disclaimers" on unofficial tabs and transcriptions) .

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Post by NoteBoat » October 7th, 2005, 7:43 am

Yeah, that's the crux of it. If I've changed something enough to make it a new (derivative) work, I'm going to be able to copyright it and collect the songwriter's royalties - which means I need the permission of the original creator; my new work might deprive him/her of income.

If I'm making a cover, I don't need to ask - but I can't copyright the work. I can take some pretty big liberties, a la the Diodes cover of Paul Simon, but the original writer gets all the copyright money. The only license that I'll own is for performance of the version that I did - I'll get the performer's share from radio airplay, etc.

The compulsory license thing applies ONLY to recordings for sale - I can't stream my own version in a live webcast, use it for a TV commercial sound, or anything else that's not directly selling records. You need explicit artist permission for that. That's why you'll hear covers of the Doors, but you won't hear Doors tunes in commercials - they've never granted that right. By extension, you know that the Who, the Stones, Springsteen, etc. are pretty approachable if you put money on the table :)
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