[00:00:00] Welcome to episode 112 of the Bandhive Podcast.

it is time for the episode of the Bandhive podcast. My name is James Cross, and I'm here with another solo episode and this week talking about something that was actually spurred by a conversation on Twitter with my friend, Todd, he's been on a couple of episodes.

number 81 from self-producing artists to full-time producer, Todd Barriage of Theatria and number 1 0 2, releasing a song every week, which is of course also with Todd Barriage of Theatria. And essentially what started is that he covered AFI, sing the sorrow. And he uploaded it to YouTube and it was blocked by the label because it was so good that the label thought he had uploaded the original version of sing the sorrow rather than a cover.

And he disputed that copyright claim and won the dispute only to have it claimed again, a few days later when it then said, if he disputes it again, he could potentially get a copyright strike. [00:01:00] And this brings about the murky world of copyright and intellectual property in general. And they can be extremely convoluted and confusing, especially in the music world because we're dealing with two different copyrights.

And this is the problem that Todd ran up against. Now he understands this and I understand this, but many people, even in the industry, don't understand that there are two distinct copyrights. That you can claim when it comes to music we'll get into all of this as we go through the episode. But first I just want to make this very clear.

I'm not an attorney. This is not legal advice. If you need legal advice, please contact an attorney, preferably an intellectual property attorney. If this is the area that you need. I have an attorney that I trust who handles intellectual property stuff. So if you do need one and you're in the U S please let me know.

I'd be happy to put you in touch. Just shoot me an email, James at Bandhive [00:02:00] dot Rox, and I can introduce you to Doug. He handled the Bandhive trademark and was a pleasure to work with, and he is a musician himself. So again, if you need an attorney, please let me know and I can put you in touch. But do not take what I'm saying is legal advice.

This is simple factual information. From what I know about copyright, is not legal advice. Now, when it comes to intellectual property, there are a few different broad categories that we need to. Differentiate before we dive into copyright specifically the first one, which really isn't applicable here, unless maybe you design guitars or some other kind of gear or anything inventive.

If you are a tinkerer, maybe this one applies to you. It's a patent and a patent handles inventions. That's basically all it is. It says you invented this, you have the rights to profit from this. If you are creative with building things or [00:03:00] designing things, a patent would apply to you, but we're not going to go deep into that area today because for most people listening to this episode, it's not going to be relevant at all.

On the other hand, what will be relevant to you is a trademark. Now a trademark and a copyright are two distinct things. I often see them confused, but they are very, very. Trademark applies to things that involve your brain. So your name, your logo, anything that is recognizable as being you McDonald's is a trademark.

Walmart is a trademark. The golden arches is a trademark Walmart's little star symbol, or some symbol, whatever that is, that is most likely a trade. Now to get a trademark, you need to use it and be the only organization, whether you are an individual or a company using that mark in your field.

So if you are Acme incorporated and you sell a. There could be another Acme Inc. That sells stuffed [00:04:00] animals. Maybe they're filled with TNT, maybe not, who knows, ask Wile E. Coyote, but either way there could be two Acme's dressed. Like there are in real life, multiple Delta. And we're not talking about the Delta variant here.

We're talking about Delta airlines and Delta fixtures. I don't know if that's their actual name, but they make like toilets and faucets and that kind of stuff, fixtures. So you have the airline and you have the plumbing equipment company or whatever it is. There are multiple deltas out there and they can co-exist because they are in different fields.

And it was a famous case about this in the music industry years ago, apple records, the Beatles record label took objective. Two apple computer using the apple name and they made an agreement that said, Hey, as long as you never go into music, fine, whatever, we'll let you have the name. Just do not go into music.

Then what did apple computer do? They went into music and that is why the Beatles catalog was not on iTunes for, I dunno like [00:05:00] 10, 15 years. Quite some time after iTunes came out because of that dispute from back in, like, I want to say the mid to late seventies. So there can be multiple trademarks for the same name, as long as you're in different industries.

However, that said, if somebody now wanted to go make a new company and call it apple automotive, they would not be allowed to because names that are as big as apple, as big as McDonald's, as big as Walmart are protected in all categories. So that is the caveat. If the name is a big enough, if it's a household brand, It applies to all categories and you're not going to get a trademark in that same category and you will probably get a cease and desist letter.

If you try to open a business with that name.

Now, if you're using a trade. You can claim a trademark on that. You don't have to register it. However, if you want to be protected, you need to register that trademark. This is done through the U [00:06:00] S patent and trademark office. If you're in the U S each country has their own organization that handles this.

And when you apply, they review all other similar marks to make sure that you are not infringing on anyone. Then there's a review process where they say, okay, this is. Our standards, we're going to publish it and see if anyone has opposition to this. And then if no one opposes to it, then you have a registered trademark has to be renewed every 10 years.

And you have to actively use the mark to keep it alive. And not only that, you also have to actively defend it. So if you see someone using your. You have to have an attorney, send a cease and desist. Otherwise your market can become, what's known as diluted, which means that well, you didn't stop other people from using it.

Now they're allowed to use it as well. Trademark is incredibly complex as is all intellectual property. So if you want to dive deeper with this and you have need [00:07:00] of a deeper dive. Contact a trademark or intellectual property attorney, because they can help you much more than I can. Again, this is just from my personal experience, what I've learned to be the facts around this, but it is not legal advice now to get to the meat of this episode, which is what we're all here to learn about or what I'm here to talk about copying.

Copyright is different from trademark and patents because copyright handles published works. So it could be anything from art, like music written work, you know, books, poems, it could be films, it could be sculptures paintings or even computer software theater performances are also under copyright photography under copyright, anything creative that gets published.

So if you publish it, if you make copies of it and distribute distributed, that's basically what copyright applies to in the U S generally, if you file for a copyright, now it will be [00:08:00] valid for the lifetime of the creator plus 70 years after the creator's death. So I'm 28. If I file for a copyright and I die at 78 that's 50 years from now, I would have 120 years of copies.

Because 50 plus 70 is one 20, but if I were to die right now and knock on wood, that doesn't happen, then it would be 70 years from now. So the longer you live the longer you have copyright now, again, that is for the U S and if you file for copyright, now, things that were filed in the past may have a shorter copyright period.

If the author of the work is a corporation, Then the timeline is a little bit different. You have 95 years from the date of publishing or 120 years from the date of creation, whichever comes first. So this is for the case where a corporation creates some kind of work that can be copyrighted, but they don't publish it for 20 years or maybe they don't [00:09:00] even publish it for 30 years.

And that's why there are two different timeframes. But the key is that the shorter one applies. So if you create something and publish it immediately, you have 95 years instead of 120, even though you would have one 20, if you waited for 25 years before publishing it. But what good is something you're sitting on for 25 years?

Probably not going to be valuable in 25 years because it's out of date. It's not relevant anymore, or maybe it is, you know, who knows, but that decision is up.

when it comes to copyright, it's similar to trademark in that. As soon as you have it, you can claim your intellectual. However with copyright, it's a little more defined instead of saying you have to be using it. It has to be fixed in some tangible form. This means that ideas in your head, they can not be copyrighted. However, as soon as you put those ideas down onto paper or into your [00:10:00] voice memos app or into Microsoft paint, if you're drawing. That is tangible and can be copyrighted. It has to be a fixed medium. And at that point you have copyright, but that does not mean that your copyright is registered to register your copyright.

You have to go to the library of Congress and it's a very important step. You just go to copyright.gov to register your works. And it's surprisingly affordable. Trademark can get very expensive, but copyright is cheap and.

Now, when it comes to fixed medium, it can be the bare bones. Like I said, it could be a voice memo. It could be you put it down on paper, but it could also be a full-blown studio recording. But as we're talking about copyright registration and this fixed medium note that the poor man's copyright, which is basically mailing a copy of whatever it is to yourself via certified mail.

So you have a date on it and then not opening the package. It does not hold up in court. That is a [00:11:00] myth. Only a copyright filed with the library of Congress or your country's office that handles copyright will work. you cannot use the poor man's copyright and mail things to yourself.

Certified mail. It does not work. Don't even bother with it. It's a waste of money.

copyright has many different categories for different types of work. The two that are relevant here are a composition and a sound recording. The composition is your song, the written work. It could be the melody. And if there are words, the lyrics of your. The composition is typically owned by you.

If you're the songwriter or whoever the songwriter is, and it's evenly split between songwriters, if there are multiple songwriters and there's no other agreement made to split them in some other manner.

A publisher will explain the song for you. This is the composition. They will try to get placements and film games or other media where you can earn royalties, but do note that they work on a [00:12:00] 200% model, you get 100% of the writer's share and they get 100% of the publisher share. Now, how do these share split up 50 50?

So essentially you're getting a hundred percent of your 50%. That's all that means you're getting 50, 50 it's split. On the other side of things, you have the sound recording. This is the master recording of your song or songs. And it's typically owned by the party who paid for that recording. That could be you.

That could be the label. If you're a studio engineer offered to do work for free, they might've said, Hey, as part of this agreement, this is my work. You know, that all has to be in writing, but that is a possibility. Whoever pays for it is typically the person that owns that.

There can only be one copyright for a song. The composition of that song can only have one copyright, but there can be multiple sound recordings with a copyright for a song that's because there can be multiple recordings of the same [00:13:00] song. So for example, if someone has a cover of a. That cover has its own sound recording, copyright, but contains the original composition and therefore royalties have to be paid to the owner of that composition.

These are called mechanical royalties in the case of permanent downloads, CD sales, vinyl, sales, anything like that, as well as online streaming for permanent downloads and sales of physical or digital media, there is a statutory mechanical rate.

This is the nationally set rate of how much it costs. It's very simple. If your song is five minutes or less than it is 9.10 cents per copy sold. If your song is five minutes in one second or more, then it's 1.50 cents per minute or fraction thereof. So if you have a seven minute song, you would just do seven times 0.0175, [00:14:00] and then that is how many cents you are going to receive for each sale of that song.

Now I do want to point out that this applies to the duration of the recording. So if you write an 11 minute song and somebody covers it and the cover is a condensed three minute version of it, you're going to get paid 9.10 cents. You're not going to get paid for the 11 minute song because that portion of use is only three minutes.

There are many different licenses. You can grant as a copyright owner, which we discussed in episode 99, 5 ways. You can earn royalties from your songs. That'll be linked in our show notes at Bandhive dot Rox slash 1, 1 2, by the way, that's the number 112 as. Todd's episodes earlier.

I'll link to the library of Congress, a link to the United States patent and trademark office, as well as the trademark search engine, which is called Tess T E S S. What I want to stress with this episode is that[00:15:00] for musical work, It is copyright. It is not trademark. It is not patent, but there are two different copyrights.

You have the copyright for the composition, which is your song. And you have the copyright for the sound recording, which is your recording of that song. Now, when you go to file a copyright, you can submit the finished sound recording as the copyright for your composition, But it's going to be on a separate form from the same file being submitted as your sound recording.

this is because a sound recording is considered a derivative work of that complex. We talked about derivative works over in episode 99. So if you want to learn about how you can make money from your songs that you've written, go check out episode 99. And in the meantime, talk with your band mates, make sure that you have a plan in place for how the royalties are split on your songs.

And then go ahead and copyright your songs, your compositions, as well as your sound [00:16:00] recordings. And again, this is not legal advice. If you have any questions, please contact and the intellectual property lawyer. I'm happy to put you in touch with an IP lawyer who is also a musician himself.

Just let me [email protected].

That does it for this episode of the Bandhive podcast. Thank you so much for tuning in and listening. I really appreciate it. And I hope that you found this episode about copyright helpful. Just wanted to say real quick if you're not already in the Bandhive, Facebook community, head on over to Bandhive.rocks/group or search for Bandhive on Facebook.

So you can join our group and discuss the music business with other like-minded artists who are looking to grow their business to the next. we'll be back with another brand new episode next Tuesday at 6:00 AM Eastern time until then I hope you have a great week stay safe. And of course, as always key us.