5 Advantages of Copyright Registration on a Song

5 Advantages of Copyright Registration on a Song

by Susan Basko, esq. 

The advantages of registering copyright on your songwriting and sound recordings include:

1. You can't sue for copyright infringement until you register.

2. If you have registered a song timely after it was created or before it is infringed, and it is then infringed, you can collect statutory damages, which are quite high, even if the real damages are quite small.  If there was not registration before the infringement, statutory damages cannot be claimed and neither can attorney fees.  THIS IS HOW simply registering will usually cause people to not infringe on a work, or to immediate remove it or cease with no argument, even without a lawsuit.  This leverage power comes from registering before it is infringed.

3. Registration gives notice to the world.

4. Registration provides a very easy, centralized way for people to find who owns a song and how to contact them.  The US Copyright Office has now included space for all that information on the registration, so it acts now as a centralized information database for songwriters and recording artists.  This enables a songwriter or owner of a sound recording to be easily contacted by those who want to license the song, use the song in a film or TV show, or who want to know where to pay mechanical royalties.

5. Copyright Registration allows the copyrights to be easily included in a will, trust, or as collateral for a loan or as a business asset.

How I Became a Member of the Bar of the U.S. Supreme Court

How I Became a Member of the Bar of the U.S. Supreme Court
by Susan Basko, esq.

Last month, I was honored to be sworn in as a member of the Bar of the U.S. Supreme Court.  The Bar members are the lawyers from the nation that are eligible to practice before the U.S. Supreme Court in Washington, D.C.  Bar members are allowed to write and argue the cases heard by the U.S. Supreme Court.  I've seen it estimated that there are 75,000 living Bar members.

Bar members attending Court arguments are allowed to sit in a special section of the courtroom, just behind the Counsel tables.  This section is referred to as being in front of the brass railing. There is a brass railing that divides this section of the Courtroom from the rear section allotted to the general public.  The Courtroom is surprisingly small and run with very strict decorum.  The center aisle is manned by elegantly attired, very polite Secret Service agents -- with the telltale earpieces. When an important case is being argued, there will usually be a long line to get in.  Bar members get their own line and the seating in front of the brass rail.  This can be a great advantage at getting in to be able to view an argument.  This can be most helpful if one writes about Supreme Court cases, or simply if one likes to watch them. Male Bar members are required to wear a suit and tie. Female Bar members must wear suits or dresses.  There is also a dress code for the general public that attend.   

Nearly all the Bar members, men and women, wear nice black suits.  It used to be that lawyers arguing a case before the U.S. Supreme Court were required to wear a morning coat with striped trousers.   Today, lawyers from the Solicitor General's office still wear this outfit.  These are the people arguing cases for the U.S. Department of Justice. On the day I was sworn in, one lawyer was dressed in this outfit.  The morning jacket is long and swoops down in back. The pinstriped trousers are long and slightly flared at the bottom.   This formal wear suits the sedate mood of the Courtroom, which is ornate, with original furnishings from 1935, when the building was constructed.

No electronics are allowed in the U.S. Supreme Court.  Phones, smart watches, ipods -- none of these can be brought in.  Most courts allow phones, but require them to be turned off or muted.  The U.S. Supreme Court does not allow them in.  No cameras of any kind are allowed into the Courtroom, even when court is not in session.  Thus, there are very few photos or videos of the inside of the Supreme Court.  These items can be stored in the hall by the restroom, where there are a few small rental lockers on a first-come basis.  I don't know what people do if they have such an item and cannot get a locker.  Coats are left at a coat check or on a coat rack. Security in the court is very tight.  Very few items are allowed in and those are, are put through a metal detector and then hand searched.

How did I come to be a U.S. Supreme Court Bar Member?  The Dean from my law school,  who was already a Bar member, invited me and said she would like to move for my membership.  I said yes.  She would be moving for the membership of a group of 12 lawyers.  We had to fill out the application.  Two sponsors, who were each already members of the U.S. Supreme Court bar, had to sign the application.  The sponsors had to vouch that they know us and our work personally and that we are of good character.  Thus, you can only become a member of the U.S. Supreme Court bar if you know people who are already members.

On an argument day, a group of 12 may be admitted in a group ceremony.  We were each allowed to bring one guest into the Courtroom.  On the morning we were to be sworn in, we were to meet at 8 a.m. at a special side door.  I got up early, got dressed, and walked the few blocks over to the Court.  I was excited and happy.

Conference Room at U.S. Supreme Court 
Our group gathered and we were ushered in to a lovely conference room.  The room was large with very high ceilings, wood paneled walls, a grand piano, a wood burning fireplace. The room was decorated with paintings of former justices of the Court.  The conference room was set with round tables with ivory tablecloths. We were served a buffet breakfast of coffee, teas, orange juice, pastries, croissants, bagels, and butter, jams, and cream cheese.  There was a platter of cut fresh melon, pineapple, and blueberries. The china and silver looked like they might also be original with the building.

Chandelier in Conference room
The Clerk of the Court came to the conference room to introduce himself and welcome us.  Another man then came and explained how the swearing-in ceremony would take place.  Many of us made an escorted trip to restrooms.  Some people posed for photos.  Soon, it was time to line up to go into the Courtroom.  We were told to leave our phones and other things in the conference room, which would be locked.  We had a few extra people with us beyond our one allotted guest each, such as family members, law students, and a few children.  We were told they would make room for everyone to have a seat in the Courtroom, at least for the swearing-in ceremony.

We were ushered in to the Courtroom and seated on rows of formal old chairs that are original with the building.  We were very near the front of the Court, so we had a perfect view for the arguments after the swearing in.  The Court sits on a raised marble platform with a long curved desk, called the bench. Each justice has a chair specially made for them, to their measurements and requirements.  When a justice retires, they get to take their chair home with them.  If I were a Supreme Court justice, I would want a chair with a built-in foot rest, and a cup holder built into the arm.  The assistants to the Court came out and placed the case brief booklets at each place.  Some assistants brought out water bottles and placed them by the Justices' places.  After everyone was seated, the Justices filed in and each took their designated seat.

Court was called to session.  The full Court of all the Justices were present.  The first order of business was the swearing in of new bar members.   Our Dean, who was moving to have us admitted, was announced and called to the podium.  She first read the short motion that is used verbatim by all movants for admittance.  Then she read each of our names, and we stood.  She made a few statements about being satisfied that we were qualified.   Chief Justice Roberts then announced that he was accepting the motion and that we were admitted. Then, another group of 12 did this same procedure.  We had seen them in another conference room across the hall from ours.  Next, we all stood and raised our right hands, while the Clerk of the Court read an oath and then we said, "I do."

It felt quite special to have my name read into the record of the U.S. Supreme Court.  It felt special to be admitted to this Bar.  Among our group, everyone I spoke with is involved in practicing law for the good of the people.  One man works for an Appellate Defenders Office.  Another conducts litigation for a State Attorney General.  I have been involved in international Human Rights, such as Freedom of Assembly and Freedom of Speech and the Media.  One lawyer, who is blind, advocates for veterans. Every one of us has been busy using our law licenses to improve society and life.  People in our group have been lawyers for anywhere from about 10 years to over 30 years.  They seemed to be a rock solid group of fine people and good lawyers.  I felt so honored to be among them.

Immediately after the admittance ceremony, the Court heard two cases.  Each case is allotted exactly one hour for arguments.  There is a giant clock above the stage where the Justices sit. (This is a great blessing, considering there are no phones or smart watches allowed.)  In addition, there are timer clocks that flash when the lawyer arguing the case is out of time.  It was interesting to watch the style of arguments.  I have acted as a Moot Court Judge -- and if a Justice is going to be prepared, it takes a lot of time to read the case materials.  My experience in that position made me appreciate the work that goes into being a Supreme Court Judge.  Watching the arguments, my preference was toward the female Justices.  I thought they asked the most pertinent questions that brought out salient points.

One lawyer arguing for the defense in the second case was an exceptionally good arguer.  What made him so good was that he knew the law of his case extremely well.  He spoke very quickly in an animated way, with a lot of gestures and arm waving, which seemed to suit him well.  His arguments were very convincing, mainly because he seemed to know what he was talking about.  He seemed to be very in control and not the least bit intimidated by arguing before the Supreme Court. In contrast, there was a female lawyer who appeared to be arguing something off topic, and one of the Justices asked her if what she was arguing was even the question that the Court had agreed to decide.  It wasn't; she said she was concerned about what might happen on remand, having already accepted defeat in her mind.   I suppose one way to lose a case at the Supreme Court is to go in arguing about something else.

Justice Ruth Bader Ginsburg attended reception in our honor.
After the lawyers in the two court cases finished their arguments, we were ushered back to our conference room for a reception in our honor.  We took a lot of photographs.  The buffet table was set with more food and drinks.  Justice Ruth Bader Ginsburg, who had accepted the invitation to attend the reception, suddenly walked in with a young male assistant.  She spoke with us and answered questions.  When she was asked for words of advice for us, Justice Ginsburg told us to not just work for a paycheck, but instead to work to make a difference in the world.  She said we should join forces with like-minded people and make the world a better place, especially today.   Then, she graciously posed for pictures with us.  Justice Ginsburg is 84 years old and sharp as a tack.  She is witty and generous.  I treasure meeting her.

Next, those of us who wanted to attend were given a very special lecture about the Court.  This was held in the Courtroom and given by a highly knowledgeable docent. Only four of us attended.  I learned that there is a basketball court above the Courtroom, and ball bouncing is prohibited until after 4:30 pm on days when Court is in session.  I also learned that the Junior Justice, who is the newest member of the Court, has among his or her duties to answer the door and the phone in the conference room while the Justices are deciding a case. The Junior Justice is also in charge of the food in the Supreme Court Cafeteria, which is open to the public and very popular with people working on or visiting the Capitol.

After the lecture, a few of us went to the cafeteria to see the food.  Justice Elena Kagan was in charge then.  There was a lovely salad bar filled with fresh vegetables for 70 cents per ounce.  There were hot entrees that looked healthy and freshly made.  The day we were there, the entrees had a South American flare, with stuffed yams and a plaintain side dish.  Now that the Junior Justice is Neil Gorsuch, I wonder if he will bring in some specialties from his home state of Colorado, such as baked trout.  Yes, while most people are wondering how the presence of Justice Gorsuch will change the tenor of the Supreme Court rulings, I am wondering how his presence will change the cafeteria food.

Dome of the U.S. Capitol Building

We looked at the cafeteria food, but did not have time to eat, because our whole big group was scheduled shortly for a special tour of the Capitol Building, granted to us by a Congressman.  We walked across the street to the Capitol Building and went through security.  Unlike the Supreme Court building, which is quiet and subdued, the Capitol Building is very noisy and filled with groups of high school students and tourists.  It is also heavily guarded.  I saw one young army guard holding a machine gun at the ready.  He stood joking with his guard friends.  Giddy high school kids walked by.  The security level seemed commensurate with this being the U.S. Capitol in 2017.

Our group was told to meet by a certain statue. Once our group was gathered, we were taken into an auditorium where we watched a short film about the history of the U.S., the U.S. Constitution, Washington and the District of Columbia, and the Capitol Building -- all told in about 12 minutes.  It was like a semester of U.S. History all wrapped up in one quick little, attractive movie. Then, we climbed the stairs to the back of the auditorium and out into a hall.  We were introduced to our tour guide.  She gave each of us a set of headphones with a receiver on a lanyard to wear like a necklace.  We would walk through crowded halls, and past other group tours, but in our headphones we would hear only our own tour guide.  She was fantastic.  We were taken on a tour of the public parts of the building, which is quite impressive.  This tour included climbing about 1,000 stair steps.  There were benches for sitting and resting all over the building, all of which seemed to be filled with grade school kids, looking wiped out.

Lastly, we were each given a pass to go see the House of Representatives that day and any day for two years.  These are called "Gallery Passes" and I could not help but think they are considered tickets to the peanut galley. When we arrived at the Chambers gallery, the House was in recess for an hour.  Some people in our group decided to go in and wait.  I have seen legislators in action many times and I was hungry and tired, so I left.

As a member of the Supreme Court bar, I will receive an impressive certificate for my wall.  A few years ago, I was asked by someone as he filed his case with the Supreme Court, if his case was selected, would I argue it?  At the time, becoming a member of the U.S. Supreme Court bar seemed insurmountable and I had to decline.  Now, I am a member.  If I am ever asked again, I can say yes.

U.S. Capitol Building

Derivative Work - "Play that Song"

 Derivative Work - "Play that Song"
by Susan Basko, esq.

Recently, a Facebook friend who is a talented pianist and composer posted this question:

"so the song "Play that Song" by the band Train.... to me, is essentially the classic "Heart and Soul"; the melody is pretty much verbatim, so... is there copyright infringement here?"

The question piqued my interest because I am a lawyer who works in music law and copyright.  Listen to the video above to hear "Play that Song," by Train.

First, I looked and found that "Heart and Soul" is an old song by Hoagy Carmichael.  Listen to that song in the video below.

My friend was right -- the two song melodies are undeniably the same.  Was this copyright infringement?

Next, I looked up the names of the songwriters on each of the songs.

"Heart and Soul" is listed as being written by Hoagy Carmichael and Frank Loesser.

"Play that Song" is listed as being written by Hoagy Carmichael, Frank Loesser, William Wiik Larsen, and Pat Monahan.  See-- the new song is naming Hoagy Carmichael and Frank Loesser, the two writers from "Heart and Soul," in its list of songwriters.

And who are Pat Monahan and William Wiik Larsen? Pat Monahan is the lead singer of Train and also an accomplished songwriter.  William Wiik Larsen is a long time songwriter and producer with many professional songwriting credits.  (Please note the correct spelling is William Wiik (two i's) Larsen, not William Wilk Larsen.)

Thus, "Play that Song" has four songwriters -- two of whom are alive, and two of whom died many years ago.

 "Play that Song" is what is known as a derivative work in Copyright Law.  The melodic tune created by Hoagy Carmichael and Frank Loesser was used with permission of the owners of the copyright of the songwriting on "Heart and Soul," which would be the publisher or the estates of the men, since both Mr. Carmichael and Mr. Loesser passed away many years ago.  Both men are also listed as songwriters on "Play that Song," which means their publishers and estates will share in the songwriter royalties on the new song.  This shows a perfect example of how registering copyright on songwriting can be of benefit even long after the death of the songwriter.

A work that is creative and original and set into a tangible medium can have copyright. Copyright gives a whole list of protections and rights.  One of those rights is the right to control who gets to make a  "derivative work."  A "derivative work" is a new work that is derived from one or more existing copyrighted works.  This pdf booklet gives a lot of information on derivative works.

If you wish to create a song that is a derivative work, you should have your music lawyer contact the owners of the copyright on the songwriting that you wish to use.  First, the lawyer will look up and see who the actual songwriters are on the song.  Next, the lawyer will try to locate all the current publishers for the song. Next, the lawyer will contact the publishers and seek permission for you to create the derivative song.  If the new song qualifies as a derivative work, it will then be copyright registered naming both you and the original songwriters as the songwriters.

If a songwriter creates a derivative work song without getting permission and without naming the original songwriter, that is copyright infringement and can lead to a lawsuit.  If you are borrowing from the songs of others, you must get their permission or risk legal trouble.

NOW THINK ABOUT THIS:  When a song is very old, it no longer has copyright protection.  Then, it is in the public domain.  If you create a new version of a song in the public domain, or use parts of it, or create a remix of several such songs, or create a new arrangement, you do not need permission.  If you do create such a work, you can register your name as the songwriter or arranger, along with the original songwriter.  For example, if you create a remix of Pachelbel's Canon in D, you can list yourself as the songwriter alongside Pachelbel, as many songwriters and composers have done.

Or, if you come up with an updated version of "Fur Elise," you can list your name as songwriter along with Ludwig van Beethoven.  Check out this version of "Fur Elise" created by Josh Vietti.

May this information help you to create.  Enjoy the music.

Chicago Street Performers Law --
Proposed Changes and Why they are Bad

RE:  02017-217  Changes to Street Performer law

Alderman Reilly of Chicago has proposed a major amendment to the Street Performer Law.  This amendment would make it illegal for street performers on Michigan Avenue or State Street to make any sound that can he heard at 20 feet.  This, in essence, makes all or most music illegal on these two streets, since all or most music from any instrument can be heard at 20 feet.


Please keep in mind that street performers and potential street performers are often NOT represented by any Alderman, since they may reside outside the City.  Also, many or most audience members for street performers are not represented by any Alderman as many are visitors to Chicago.

We all oppose the amendments to this law for the following reasons:

1. There has been no notice to the Street Performers and no opportunity to be heard. When selling the licenses, the City requires contact information of the licensees, including address, phone, and email.  Yet, the holders of Street Performers Licenses were not contacted by phone, mail, or email by the City about this proposed change to the law.   There was no public hearing about which they were personally notified and to which they were invited. It is absolutely illegal and outlandish that a business license would be so drastically changed as to become meaningless and no notice has been given.  This makes this process unconstitutional.

2. Street Performer Licenses are two year licenses, and so a minimum of 2 years should be the waiting period before such changes to the law can take effect. Otherwise, the licenses have been sold under false pretexts. The change to the law is to take effect immediately upon passage.  This makes the new law unconstitutional.

3. Treating those with Street Performer Licenses in this way is unconstitutional because it treats them in a way unlike the holders of other business licenses, as if they can be disregarded and maltreated.  

4. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking "20 feet" is some magical number.  Almost any sort of music can be heard at over 20 feet by a person with normal hearing.  In effect, this law makes all music illegal on Michigan Avenue and State Street.  In many spots, the sidewalk itself is 20 feet wide.  What is "20 feet" based on?

5. The change to the law is irrational, which makes it unconstitutional.  There is no rational basis for thinking that removing music from Michigan Avenue and State Street will mean that the complainers will no longer hear music -- since the musicians will simply be able to go around the corner, for example, onto Randolph, and make the sound, which will still be heard by the complainers.

6. The law is unconstitutional because it is irrational, because if the complainers on Michigan Avenue and State Street "need" protection from music, don't the people on all the other streets also "need" to be protected from music?

7.  The law is unconstitutional because it is racist, because it will mainly or disproportionately in practice affect young Black male bucket drummers.  These young men should be encouraged to feel they are part of the City and that they are welcomed on the streets.  This is their chance to make the City their own, to feel pride in showcasing their talents.  They are greatly beloved by tourists and other visitors to the downtown areas.  Many depend on the money they make by street performing.  Under the proposed law, all this is lost.

8. The City of Chicago is already unconstitutionally barring street performers from all places in Millennium Park at all times.  This has been shown in litigation in other cities to be unconstitutional.  Barring a street performer's right to make music in a city's showcase park has been shown to be an unconstitutional violation of the First Amendment rights, not only of the Street Performer, but of the potential audience and the City dwellers.  There is a constitutional right to hear these messages as much as there is a right to give these messages.

9. Just as street performers have a constitutional right to perform in a city's showcase parks, they also have a constitutional right to perform on a city's showcase streets, including Michigan Avenue and State Street. And just as the buskers have the right to perform, the intended audience, the public, has the right to hear the messages/ music.  And restricting music that can be heard at 20 feet is essentially removing all music from the streets.

10. The City of Chicago Street Performers License Law is probably illegal in itself, in requiring licensing and payment from people to exercise their First Amendment rights on public streets.