Intellectual Property Checklist for Marketing the Recording Artist Online

Journal of Intellectual Property Law Volume 18 | Issue 2 Article 8 March 2011 Intellectual Property Checklist for Marketing the Recording Artist Online Amy J. Everhart Follow this and additional works at: http://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation Amy J. Everhart, Intellectual Property Checklist for Marketing the Recording Artist Online, 18 J. Intell. Prop. L. 541 (2011). Available at: http://digitalcommons.law.uga.edu/jipl/vol18/iss2/8 This Practice Point is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized administrator of Digital Commons @ Georgia Law. For more information, please contact . Everhart: Intellectual Property Checklist for Marketing the Recording Artis INTELLECTUAL PROPERTY CHECKLIST FOR MARKETING THE RECORDING ARTIST ONLINE Amy J. Everhart' TABLE OF CONTENTS ................................... ........ 542 I. INTRODUCTION II. PROTECTION OF THE ARTIST'S COPYRIGHTS ................... A. CONFIRMATION OF COPYRIGHTS..................................................... ................. B. THE USE OF DESIGNERS AND DEVELOPERS 542 542 543 III. PROTECTION FROM LIABILITY FOR THIRD-PARTY CONTENT ......... 544 IV. THE USE OF THIRD-PARTY CONTENT A . M USIC RIG HTS ........................ ...... 545 ................... 545 .......................................... ........ 545 .......................... 1. StreamingAudio ............ 546 2. Downloads.......................... 546 3. Streaming Video................................................ B. C. ............... 546 PHOTOGRAPH RIGHTS.................... 547 PRIVACY AND PUBLICITY RIGHTS................................... V. TRADEMARKS AND DOMAIN NAMES ..................................... 548 VI. PRIVACY POLICIES AND TERMS OF USE.......................... 549 VII. CONCLUSION ..................................... ......... 550 * Owner and founder of Everhart Law Firm PLC, a law firm in Nashville, Tennessee that focuses on copyright, trademark, entertainment, and Internet law. 541 Published by Digital Commons @ Georgia Law, 2011 1 Journal of Intellectual Property Law, Vol. 18, Iss. 2 [2011], Art. 8 J. INTELL PROP.L 542 [Vol. 18:541 I. INTRODUCTION A recording artist's online presence is the press kit of the digital age. Unlike the paper folder with headshot, bio, demo CD, and press clippings, however, the online marketing landscape-whether a website, a blog, or social networks such as Facebook, YouTube, and Twitter-is lined with intellectual property landmines. To ensure both protection of the artist's rights and the artist's compliance with the law, artists and their attorneys should consider this checklist, by no means exhaustive, of intellectual property concerns triggered by the use of online marketing tools. II. PROTECTION OF THE ARTIST'S COPYRIGHTS The anonymity and accessibility of the Internet renders theft of online intellectual property rampant and difficult to trace. Before an artist posts any intellectual property online, whether a recording, a video, song lyrics, or the like, the artist should clarify and secure all necessary copyrights. A. CONFIRMATION OF COPYRIGHTS The artist should first assess and confirm, in writing, if not already done, the ownership of all intellectual property the artist intends to post. In the case of a song, this includes clarifying the co-writers and co-publisheis and their respective copyright shares. In the case of a recording or a video, this includes clarifying the ownership of the sound recording and the video images, accounting for any recording agreement or other agreement governing use or ownership.' Of particular importance before posting, the artist should consider registering with the U.S. Copyright Office all content in which the artist owns a share. 2 Registering content before it is made available online and becomes particularly vulnerable to misappropriation could afford the artist additional remedies for copyright infringement if the content is misappropriated. 3 I An audio recording of a song, or musical composition, includes two separate copyrights: (1) the musical composition, consisting of the underlying music and lyrics, and (2) the sound recording, or the particular performance of the musical composition. Bridgeport Music, Inc. v. UMG Recordings, Inc., 585 F.3d 267, 273 n.1 (6th Cir. 2009) (citing 17 U.S.C. § 102(a)(2), (7) (2009)). In many cases, the copyrights to the musical composition and the sound recording in which it is embodied are held by different owners. 2 Copyrights can be registered online at http://www.copyright.gov. 3 A work need not be registered with the Copyright Office to acquire copyright protection. Copyright protection is conferred upon embodiment of the work in a tangible medium. 17 U.S.C. § 101 (2010). Thus, once a song is created and recorded, copyright attaches. Registration of the work with the Copyright Office before infringement or within three months of first publication of the work, however, confers the right to seek attorney's fees and statutory damages http://digitalcommons.law.uga.edu/jipl/vol18/iss2/8 2 Everhart: Intellectual Property Checklist for Marketing the Recording Artis 2011] MARKETING THE RECORDING ARTIST ONLINE 543 The artist should also consider registering any song of which the artist is a copyright holder with a performance rights organization such as ASCAP, BMI, or SESAC so that the artist can collect performance income for performances of the song online.4 Finally, the artist should post a copyright notice on or near the artist's online content notifying the public that the content is the proprietary property of the artist or its licensors, if the latter is the case. A strategically placed copyright notice will serve not only to educate the public that copyright law applies equally online and off, but also may bolster an artist's infringement claim if such a claim should become necessary; an infringer cannot claim innocent infringement to mitigate damages if the work that was misappropriated included a copyright notice.5 B. THE USE OF DESIGNERS AND DEVELOPERS Artists will often hire third parties to design and develop web content, such as logos, web-page designs, and social-network page designs. The artist should take precautions to ensure ownership of this third-party content and protection from liability for the content. A fundamental concept of copyright law is that the author of a work, in most instances, owns the copyright to the work unless the copyright is transferred in a signed writing. 6 Simply "hiring," or paying, a third party to create a work on behalf of the artist may not be sufficient to confer the copyrights in the resulting work to the artist. Unless designers and developers are employees of the artist and create the content within the scope of their 7 em (...truncated)