I know, from what I've read, that the Poor Man's Copyright method of mailing yourself a document is not admissable in court. However, what I'm wondering is, if you get an envelope and have a legal notary seal and stamp it, would this be an acceptable form of proof of creation? Sort of like what WGA does for scripts?

I do realize that there is no replacement for an official government registered copyright. I just have some short scripts that I'd like to at least prove creation dates on, but don't want to bother spending the money on paid registrations since they are just shorts.

As I understand it WGA still requires you to get a copyright registration. I did one for a friend and it's a piece of cake; I don't know why you would be reluctant to do it.

But you don't need to register to have copyright rights - they are automatic, as soon as expression has begun. If you're worried about legal proof of date of authoring, just publish them. But if it's unpublished, you really should register.

You could also have witnesses read the script and sign the end of the script as saying they read it. But to go to court you'd have to bring them in to testify at trial. Registration is prima facie evidence of a valid copyright, and compared to all the trouble with the other methods, it's the cheapest and most effective.

Any advice on this for us Europeans, Peter?

Peter, thanks for the info. Question though... if the item is notarized, then isn't that all you need as far as a witness? I can't imagine that notaries are always called into courtrooms to testify.

My hesitation was just because it didn't seem worth it since these are just some short scripts that I'm gradually shooting one by one. Once I shoot 'em that's pretty much proof right there, I suppose.

Also, if you get it officially registered, then is the WGA registration really even necessary? I looked on the WGA FAQ, and their only justification was this:

"Even if you have copyright through the Library of Congress, registering with the Intellectual Property Registry creates a separate legal record for your material. In addition, you may consider registering treatments or drafts of your work-in-progress with our Registry, prior to registering your final draft with the Copyright Office."

I might be missing something, but to me this sounds like WGA is just saying, "well, we can't really give you a reason but you should do it anyway because we want your $20."

You'd think they would have a better justification.

"Any advice on this for us Europeans, Peter?"

Sure, Rob. Well I can only speak to US law, but the Berne Convention and WIPO treaties require member countries to treat copyrights on foreign-made works exactly the same as they would domestic-made works. So you would want to register your work in the US if you want prima facie evidence of a valid US-protected copyright, but it's also not required if you have other evidence (such as publication). Sorry I don't know anything about European copyright law, as to whether it's automatic, what proof is required, etc.

Imran, about the WGA, I believe my friend was doing this because he needed SAG-blessing on one of his projects because he used a couple of SAG actors and they got experimental / educational status (so he didn't have to pay them). So I believe he was required to register with WGA because of that. I can't imagine why else he would have done that, unless maybe he himself wanted to get into WGA too.

Anyway, certainly a WGA registration would be helfpul and probably would be admissible in court as an unbiased business record. But it certainly won't provide you with any MORE protection than an LoC registration would. It's true that you can register early drafts with them before you send your final draft to LoC, but the copyright protects you the moment you put pen to paper, and every single draft you write is protected equally.

I guess if you're worried about someone seeing your draft and copying it before you register your final draft, you can register with WGA for some protection. That would make sense for a movie because you might have dozens of people looking at drafts before a final draft is made, even during filming itself, and you don't want to go reigster every single one. But if you just register your first draft, then you've still proven you've made the material as of that date, so no one can take a future draft and copy any material that was in the first.

About the notary, I'm reclutant to say yes that will work and have you go rely on that without registering, because really you should register to maximize your protection (and again, I don't see why you wouldn't unless you were incredibly poor), but no a notary is not required to come into court because notarized documents are self-authenticating, which means unless the other side can provide evidence to the contrary, the document as-is is considered authentic and to have existed as of the date of the notarization. I was talking more to the idea of using live witnesses to testify to your authorship. I still wouldn't use a notary though because, again, registration is cheap, and practically iron-clad. There's too many possibilities for mistakes with a notary, unless you use a lawyer, in which case it'll cost you a lot more! There'd be a lot of intermediate details there, such as drafting up the certification document which is what the notary actually stamps, that it doesn't seem worth the effort to find out how to do it right.

Simply having a notary stamp an envelope? I don't even think they'd do that. You need some kind of certification document or paragraph with a notary.

Thank you Peter, this information has been INCREDIBLY helpful.

I have some feature scripts that I will do the draft-to-WGA route and then, when done, do the LOC copyright.

As far as these shorts, I guess, as easy as it is to fill out the LOC form, and at only $30, I might as well go ahead and do it. This next short I'm filming should actually turn a small profit so it would behoove me to do things correctly.

Thanks again!

Sounds good, glad to be of help.

Remember to use Form PA, and that you can register a collection of scripts in a single application. Go to www.copyright.gov for all the info.

<<<-- Originally posted by Imran Zaidi : I know, from what I've read, that the Poor Man's Copyright method of mailing yourself a document is not admissable in court. However, what I'm wondering is, if you get an envelope and have a legal notary seal and stamp it, would this be an acceptable form of proof of creation? Sort of like what WGA does for scripts?

Speaking as a Notary here in California, there is no provision in California Notary law for doing what you describe. We really just certify that the signature on a document is truly by that person based on reasonable proof of their identity.

We can also certify that a copy of a document is a true copy but that doesn't get you anywhere either.

Simpler just to go ahead and register your copyright I'd think.

I know, from what I've read, that the Poor Man's Copyright method of mailing yourself a document is not admissable in court.
You've read wrong. It's admissible in court as proof of date of creation, just as any evidence is admissible, i.e. if it is properly authenticated. However, relying on this method means you don't get the legal presumptions of validity and ownership which accompany a copyright registration.

The same is true of a notarized envelope or whatever. It is proof. It is admissible if properly authenticated. It will not result in the presumptions of ownership and validity which accompany a copyright registration.

These presumptions are critical as they shift the burden of proof to the defendant.

Note, too, that, at least in the US, you cannot file suit for infringement unless you have a registered copyright, and statutory damages will be measured from the date of infringement _after_ the registration.

I do not understand why anyone has any resistance to registering a copyright. It costs the same as, for example, having something notarized. It's simple. It's fast. You don't need a lawyer to do it.

Poor man's copyright?

write, "Copyright, date & full name on document or whatever, then "double register" it to yourself. Leave it sealed when it comes back to you; put in a safe place.

I'm a bit confused. We are talking officialy copyright here and
registration at the WGA, right? You are saying that WGA might
be proof in court, but that is not garantueed (which I thought it
was)? So then only copyright is left. Can anyone tell me what
costs (in the US) are to do a WGA registration and copyright
(not saying do both, just wanting to know what it costs).

Does anyone know if I can register or copyright my work in the
US *and* in my homeland here at the same time?

I have to figure out how it is working here in The Netherlands.
Currently have no clue as to scripts.

Rob,
We're talking about a lot of different things.

- Simple copyright (US) - automatic as soon as pen is put to paper. In court, plaintiff must prove authorship and date, and valid copyright.
- Copyright registration (US) - register with the LoC for automatic presumption of authorship and date, and valid copyrightability. Defendant must rebut presumption to win on that point. Costs $30. Visit www.copyright.gov for information.
- WGA registration - Provides no additional rights. Can possibly be used in court as proof of authorship and date, but is subject to authentication, etc. Mainly used to satisfy union requirements, little legal effect, if any. Don't know what this costs.
- "Notary" / "Mailing it to yourself" - May have effect of proving authorship and date, but problems with authentication and drafting of notary certificate make this option virtually worthless.

Rob, you can certainly register your work in the US and your own country at the simultaneously. If by that you mean can you do it with one application, no you can't - you can only register a US copyright with the US Copyright Office. Sorry I don't know anything about how copyrights work in Holland so I'm afriad I can't help you there.

WGA registration is $20, or $10 for WGA members in good standing.

It's pretty convenient, because you can do it all online, using a PDF or Final Draft document, and I think Word .doc also.

Thanks for the info everyone! If I discover something local here
I'll let everbody know.

Paul,

Can you expand on the concept of Notarizing proof of mailing?

I don't know how to do that but would like to know or know where to pursue the information.

Thanks,

Mike

The postmark is really the proof of mailing. I guess in theory you'd have to open it up in court in the presence of witnesses (a judge, jury, etc.)

I don't see what notarizing the envelope would do.

The only thing I could see, theoretically, is if you took a copy of your script, and had with it a certificate to be notarized, stating that the document existed in that condition as of that date, and that it was signed by the author. That's all that would prove. That can't even prove authorship, only date of authoring. So if someone writes a script 1 year later with your material and claims he was the first to author it, you could show that notarized script and say "no, this proves this document was written a year ago" and, circumstantially, by you. You still have to prove other elements of infringement (access, etc.)

Like I said, it's basically of little value, compared to a registration.

Any other thoughts on this Paul?

Rob, That's how it's done here and many other countries. I actually used one in court about 5 years---perfectly legal. However, you can always pay a lawyer to do it for you, but it makes no difference. Someone I knew also does this all the time. Once he went to some court in the USA to prove he owned the rights---he won, of course.

<<<-- Originally posted by Peter Moore : snip

The only thing I could see, theoretically, is if you took a copy of your script, and had with it a certificate to be notarized, stating that the document existed in that condition as of that date, and that it was signed by the author.

You could have a Notary certify that a copy is a true copy of the document. That gives a date and time along with the Notary Seal.

I suppose you could also sign the doc and have the Notary certify that the signature is authentic. Gets a Seal and date too. But it does not in and of itself, certify the document.

Paul,

Can you expand on the concept of Notarizing proof of mailing?
Mike, I'm not even sure whether a notary can do this. The point is, it wouldn't be very much better than mailing something to yourself, i.e. it's only evidence of prior creation. The _best_ way to obtain protection is simply to register the copyright with the US Copyright Office. The cost is nominal, comparable to notarization, and the process is easy -- it's a two-page form that requires little more than your name, address, the date of creation and the provision of a deposit copy for the Library of Congress. Registration is the best protection you can have.

You confirmed what I believe, that a Notary cannot do much in this instance.

I do agree that registration is the only smart way to create the fulcrum from which one can defend their ownership.

Thanks for your reply

I'm not following you, Frank. What way are you talking about?

He's talking about writing the copyright notice:

© Copyright 2004 Peter Moore. All Rights Reserved

On the document.

But that doesn't prove authorship or date of authorship. And we already talked about why the mailing to yourself is worth very little compared to registration.

Geez, guys...hasn't anyone here reg'd a copyright? You should, even for just the experience. Copyright a poem or something.
First, as of 1989, you don't need to register anything to own a copyright as long as the material is in a "tangible form." (that is a legal term)
Second, you don't need the copyright symbol anymore on anything.
Third, registering a copyright merely assures that the LOC (library of congress) will back up your date of registration, proving when you registered (not created) the work.
Fourth. "Poor man's copyright" doesn't carry any water with the courts. This is a myth, capitol "M." It merely shows that you sent yourself a piece of mail and it has a postmark on it. However, this has been shown to be fraud-possible in several instances. Registration of copyright is the only way you'll have an iron-clad proof of ownership and origination date.
This is all pretty simple, and a quick visit to the www.loc.gov site will clear it all up.
I speak/lecture at many forums on copyright laws, their uses, pitfalls, and benefits a lot, because videographers are the third largest abusers of copyright out there.
If you want to read a brief summation I wrote for NARAS on copyright laws and video, www.sundancemediagroup.com/articles/copyright.htm gets you to it. Just remember I'm the messenger, not the lawmaker.

Wow, it's great to have you on the forum! I bought your 4-DVD trainer on Vegas last year and found it very helpful.

Welcome!

Douglas, that's an excellent article on copyright. A couple of points, though. I'm not convinced that waiters singing "Happy Birthday" at Fridays would constitute a de minimus sue. The use is commercial in character and constitutes a public performance. Fair use considers the commercial impact of a particular use. However, copyright grants an absolute monopoly over any use -- it's up to the copyright author to determine when, and whether at all, their work can be performed in public. Also, with respect to incidental reproduction, the case law is inconsistent. I'm not at all comfortable telling anyone that it's okay to include incidentally-recorded copyright material in their works. As a general rule, including such material in legitimate news gathering will tend to be found non-infringing, whereas commercial uses will not. Otherwise, your article is a model of clarity and very accurate. Nice job!

Actually, copyright does NOT creat an absolute monopoly. Not by a LONG shot.
Second, in 2 states, the use of Happy Birthday with the "Good Morning To You" melody has been judged DeMinimis, and appealed and heard, then thrown out for a variety of reasons. Most restaurants avoid the song for this very reason. But YOU, as a family member/parent, have every legal right to sing the song in a public place, even though it constitutes Performance. The same would apply to whistling a pop tune, for instance. There is no "harm" to the copyright holder. Warner Bros has yet to bring this issue to court in the years they've owned the song's rights. Now, if you record those words with that melody, then you're screwed.
I'm not saying "Go ahead and do it." It's not my job to tell folks what to do and what not to do. I'm not a lawyer, as the article clearly states in black and white, bold.
Copyright is clearly the most misunderstood set of laws out there, and its due in part to us not telling our legislators what we think. Baldwin company screwed artists for years, opening the door for Fair Use, which is different than fair use.
You may not be comfortable telling folks they can include incidental, and I'm not saying it is. What I am saying is that there is a lot of precedent regarding incidental music in news, documentary, and other related uses. As the article states, if you are making a feature where you have control, you'd better not use it.
The article has been vetted by multiple copyright and intellectual properties attorneys from both the music, video, and software industries, it's not as though I simply took my own opinions and posted them to an article for hire. This appeared in a NARAS publication and they made damn sure it was accurate. So with regard to what the article says, I'm extremely comfortable and make no apology nor quarter.

A bit of an overreaction to Paul's comments, I think. And I agree with him about the commercial use of Happy Birthday, whatever court cases have gotten thrown out notwithstanding.

I apologize if my response seems to be reactive. I would suppose that's due to having the crap kicked out of me for bringing this subject to people's attention. I hear more about people's "opinion's" of the law than I do about their desire to obey it.
Point overall is, whether it's your opinion, my opinion, or anyone else's opinion, NO ONE is going to be prosecuted for singing "Happy Birthday" in a restaurant unless it's the staff singing it, and it's a common occurence. You and me and any other person singing the song can do so. The test is, "What harm was suffered by the copyright holder if any, and if so, what are the damages."
In a family setting whether in a restaurant, our kitchens, or on a Mongolian mountaintop, we are permitted to sing "Happy Birthday" or any other song we wish. Schools' aren't exempt either, yet the song is sung perhaps hundreds of times a day across the country in most every elementary school. They aren't prosecuted either, even though it's illegal do sing as a group like this.
It's when a commercial venture uses the song that a problem crops up. Yes, it's illegal if we sing it in a public place. That's not the question.
Read the article yourself, I'm suspecting that neither of you read it correctly. It doesn't say the wait staff of a restaurant can sing the song, it says that YOU can sing that song. Whether or not you agree, the courts have set precedent. The better test is, if you can find me one single solitary case where a family has been sued for singing "Happy Birthday" in a public place and the family/performer has lost, I'll happily eat my words and tell the attorneys for the Academy of the Recording Arts and Sciences that their research is absolutely wrong. There are only two cases that show up where a domestic use was taken into court that show up on Nexus involving that song title. One involved a steakhouse trying to prevent a family from singing it because they believed it would put their business in jeopardy, and the court threw it out, because the family sued the restaurant for not allowing them to sing it, and the other was a similar situation, but the court heard the case, and sided with the family. I don't make the legal precedent, I merely reported it. And as I said, I make no apology for anything in there. If I can be shown I'm wrong after all the expense, time, and experience that has gone into it, I'll absolutely recant. And again, if I appear 'reactionary' over this subject, it's probably attributable to other forums forgetting that it's merely a report of the law and the community ends up shooting the messenger.
This article is a smaller part of a much larger article hired by a publisher, vetted by multiple attorneys, and checked for accuracy by several people. It's not as though I simply woke up one morning and decided to write a few thousand words to thrill myself. It's been published in full length in print, and I arranged for a section to be published for videographers, since the video industry abuses copyrights more than any other industry does, mostly out of ignorance and opinion, supposition and guessing instead of actual malice or intent.
At this point, I guess I'm sorry I've commented, apparently ignorance is bliss. But it could be an expensive bliss. I know I've learned the hard way.

Just as a note of reference, both Paul Tauger and Peter Moore are attorneys. Paul's speciality is intellectual property and copyrights. I don't believe Peter has mentioned his area of expertise.

Doug,
Sorry, I thought you guys were talking about the wait staffs singing happy birthday. I agree that no family singing happy birthday would be committing infringment, under a multitude of theories (fair use, no damages, etc.)

Jeff,
Most of my work is patents but I studied copyrights pretty extensively in school (mainly DMCA nightmare scenarios). I'm currently preparing for the Patent Bar Exam, which, yes, is a SEPARATE bar exam just for patent prosecutors (as if we didn't need to take enough exams. :) ).

Big PS - Please all be clear that nothing that Paul or I say should be taken as legal advice applicable to your specific cases, only as academic discussion.

Hi, Peter. Where is your practice?

Actually, copyright does NOT creat an absolute monopoly. Not by a LONG shot.Actually, Doug, it does. With the exception of fair use, and one or two other statutory exceptions, the copyright owner has the _absolute_ right to say, "I don't want anyone performing, copying or distributing my protected expression." It doesn't matter whether, as in your Fridays example, the economic impact is minimal (notwithstanding fair use exceptions) or the use is de minimus.
But YOU, as a family member/parent, have every legal right to sing the song in a public place, even though it constitutes Performance.Family members singing in public would probably come within fair use. Waiters singing at your table, less so. I'm not aware of any opinions on the subject. If you'd like to share a cite, I'll take a look at it.
is no "harm" to the copyright holder. Lack of harm to the copyright holder is not a defense to infringement, except in a fair use context, and in that respect, one of the tests is harm to the market for the work. However, none of the tests are dispositive, nor are the four enumerated tests in the statute exclusive.
I'm not saying "Go ahead and do it." It's not my job to tell folks what to do and what not to do. I'm not a lawyer, as the article clearly states in black and white, bold.In your article, you said:

"If the music is only ancillary and incidental, and not heard as part of the video, but merely ‘noise’ in the background, you are probably OK."

That's wrong, as a matter of law. Someone who does this is not "probably ok." They might be okay depending on what jurisdictions they are in, but in others they most certainly will not be okay.

Copyright is clearly the most misunderstood set of laws out there,Um, yes, that's quite clear.
and its due in part to us not telling our legislators what we think.In my opinion, its due to too many special interest groups telling legislators what they think, and legislators listening. The recent copyright term extensions and the DMCA are proof of that.

Baldwin company screwed artists for years, opening the door for Fair Use, which is different than fair use.I have no idea what you mean by this, but fair use is fair use, i.e. an equitable doctrine, subsequently codified, that tries to balance First Amendment and equitable considerations against the absolute right granted by copyright.
What I am saying is that there is a lot of precedent regarding incidental music in news, documentary, and other related uses.As a matter of fact, there isn't a lot of precedent with respect to incidental reproduction, which is one of the problems. Of the cases which address it, most of them hold that news use won't constitute infringement. There are other cases which hold other uses are infringing. Do a search here on name and "incidental reproduction" if you want the case cites.

The article has been vetted by multiple copyright and intellectual properties attorneys from both the music, video, and software industries, it's not as though I simply took my own opinions and posted them to an article for hire.
And now its been vetted by another IP attorney. As I said, it's an excellent article and quite accurate, with the two minor exceptions I mentioned.

Paul N. Tauger, Esq.
California State Bar No. 160552

If you want to know the firm in which I'm an IP partner, you'll have to do a google search. I don't speak for them here.

The test is, "What harm was suffered by the copyright holder if any, and if so, what are the damages."
Nope, that's not the test, though it's a common misconception that's often repeated here. As a practical matter, most copyright holders won't sue for de minimus infringements, or where there is little prospect of recovering damages. However, I bring suits for my clients _all the time_ for what might seem to someone a de minimus infringement. The test, for my clients, is whether it makes business sense to bring the law suit. Often, the answer is, "yes," even when damages can't be collected, for a number of reasons, including sending a message to other potential infringers. However, the _legal_ test for copyright infringement is this, and only this: Does the plaintiff own a valid copyright in the expression at issue, and did the Defendant copy it. Fair use is a defense to infringement. Whether it applies or not is something that will be determined by the court, and only after a law suit has placed a specific use at issue. Whether there has been economic harm (and note that there other judicially-cognizable forms of harm beside economic injury) is one of four enumerated fair use factors, but it is not dispositive and there are others besides those in the statute which are considered.

The exceptions I was referring to are indeed Fair Use. While it's definitely an area that folks have a hard time with, hence my exceptionally small explanation of Fair Use, it's one that many, many videographers turn to when they use their "10 seconds" or whatever their buddy told them they could use. I didn't realize you were an attorney, or I would have better explained what I meant by "not by a long shot."
Fair Use and Public Domain have both come back to bite me in the butt. Disney once used some of my music, citing it as Public Domain because they thought that indigenous music falls into the public domain. It wasn't my performance, they had someone else perform my copyrighted melody. I also have had experience where someone sampled my music for a drum loop in a commercial recording. We lost that initially, and the decision was set aside on appeal.
Peter, thanks for the clarification. Paul, thanks for the additional education. Again, not realizing that you (or anyone else here) is an attorney, I tried to keep my response basic. I don't dare do specific, I'm not an attorney. :-) By being basic about a specific subject has now caused me to look more than a little foolish. (I think for instance by my citations in the article, you probably recognize that I realize there is more than economic harm as being one of the tests)
I agree, special interest groups have controlled far too much of the dialog on this issue, hence my comments that WE, as non-special interest groups, have said too little. There needs to be a manner in which common man can license copyrighted materials for use in videography and like commercial pursuits where a specific number of licenses may be issued for a particular purpose. I'm not talking about the $10.00 per song in a small replication product or whatever that a lot of people wish for, admin costs alone wouldn't be covered, let alone royalties for the artist, mechanicals or otherwise.
FWIW, as a full-time artist whose primary income is based in creative pursuits, I'm a big fan of copyrights, and as the tone of my article implies, I'm more interested in educating folks than pursuing them for copyright violations. I appreciate the caution on incidental. The citations I'm aware of involved American Express and a documenary film maker, and they prevailed over the concert promoter and band whose music was in the background. The test, as it was explained to me, was "was the intent of the videographer to make the background/incidental music perceptable, or was it indeed incidental?" Perhaps I misunderstood the explanation. I'll amend my article for future readers.
Regardless, thanks for the dialog, and I'll try to look less foolish in the future.

Heh, I'm thinking we should probably give Paul a custom title, such as "Attorney at Law" or some such, so that our readers can readily identify him as a qualified and experienced lawyer. He definitely knows his business, especially regarding media law. We're fortunate to have him, as well as a gifted musician and respected audio guru, together on our boards here. Cheers,

Doug, believe me, you don't look foolish. You have a very good understanding of copyright and your article is one of the best explanations of the subject I've seen on the web. I wouldn't hesitate to recommend to anyone here with questions.

I agree with you that there should be some mechanism that would allow reasonable licensing of copyright material. I've spoken, informally, with BMI's counsel about a "videographers license," that would allow, for example, wedding videographers to use the bride's favorite song in a wedding video. Unfortunately, there was little interest on BMI's part. This is probably not surprising, since BMI probably doesn't see much potential income from such a license, though they might be surprised.

With respect to incidental reproduction, I suspect that, ultimately, it will be deemed a fair use. Unfortunately, the decisions to date are inconsistent and, until a couple of appellate courts rule, it will remain an open question and subject to the whims of whatever district court judge this question comes before. There is, as yet, no clearly-defined test -- it varies from jurisdiction to jurisdiction.

I'm only an amateur videographer, but I'm going to try to sell my travel videos on the internet; incidental reproduction is something I'm very concerned about, as the issue comes up in what I shoot fairly often. For now, I'm careful about what I include. My first "commercial" release, which is about India, only uses field recordings of itinerent musicians playing traditional folk music (and, after hearing of your experience -- I'm glad you prevailed, by the way -- I'm going to review what I'm using), and I've avoided using an incidental recordings.

Paul,
It's gonna take a collective with the RIAA and the MPA to create this sort of movement. I'd love to see an on-line access for people wanting to make say....fewer than 1000 copies and a license fee of a couple hundred bucks, like a Harry Fox online, with stipulations as to how the music is used, almost like a performance royalty but with an attached sync license. Mechanicals are compulsory, so that's a non-issue as far as I'm concerned.
it's not fair that an honest videographer isn't capable of competing with a dishonest one who will risk his business by using copyrighted works. It's also not fair, IMO, that a wedded couple can't have their favorite love song on their wedding video that they hand out to their 10 friends or whatever.
I also am adamant that copyright holders should be paid for their work. Finding that middle ground will make someone very, very rich if they can put the effort into getting publishers to come together and make this possible. Can you imagine an iTunes type interface where videographers could order up a pop song for 25.00 or so with a restricted use sync license?
that would be so wonderful for everyone. A total win for every one.

Isn't this sort of the direction that things might be going with the whole "Creative Commons" thing?

http://creativecommons.org/

For example, there's http://www.magnatune.com which is attempting to follow the Creative Commons guidelines, and allow you to select a song, the 'Territory' for distribution, and then instantly spit out a licensing agreement based on your choices.

They wish.
Creative Commons is for artists who don't have publishers, record deals, studio deals. For instance, due to my publishing deal, even if a record is never released I can't do a Creative Commons deal. And frankly, why should I? Who handles admin? The artist does. So...is the artist now an artist AND a publishing admin? Who tracks the use?
No, Creative Commons is a completely different subject in a different light. You'll never see a Celine Dion or Garth Brooks or Whitney Houston, etc be a part of a common copyright agreement.
C/C is a brilliant concept, for folks that are in a different arena than 'big names' and frankly, the big theft of music is from the big names, not the folks that are using C/C at this time.
Eventually, this will change, I think. But probably not for a decade at the least, and much longer than that, I believe.
One day, artists will not sign to a label, they'll sell everything direct and have to employ their own sales, marketing, yadayadayada. It's too bad that lay people don't understand how the industry really works. People don't realize that when I create a song, I literally employ a hundred plus people in the pursuit of making that song happen. I don't pay them, but they all get a piece of the pie. And as an artist, I don't disagree with that. My job is making music. Not tracking, administering, selling, packaging, shipping, designing covers, etc etc.

Doug,
I would be extremely in favor of compulsory licensing for music recordings. But I suspect it will require a change in the law to happen, that RIAA will never agree.

As someone who is fortunate (?) enough to be married to an IP Attorney,(One who was deeply involved in RIAA litigation) I can definately state that the board is lucky to have Paul weigh in occasionally on Trademark/Copyright matters. Having Paul on the board is the next best thing to being married to one! (Mmmm, let me think about that for a minute.)

Yes Peter, I agree, the RIAA will never go for this concept at any near future. What might happen in several years though, is that musicians will begin to flee their labels and the Holy Grail of musicianship..."Our Label Contract" and at some point the members of the RIAA might be forced to consider such a drastic change. Annie Lennox set the industry on it's butt by what she's done, and with Madonna, Janet Jackson, Garth Brooks, Evanescence, Thursday, and other bands all striking their own P&D deals....I'd say the writing is on the wall. In effect, Apple is going to become a label of sorts because the iStore/iTunes will be a huge reseller of music. Of course, it would be sensible if there were a compulsory attached in a second "Buy Me" column for those that might want to use the song for more than just listening to. Wait a minute...That would be sensible. Therefore it will never happen. :-)

This makes me think of a very interesting article I read on a similar topic just recently. Written by a NY subway musician who is a journalist by day (and makes more money down there than above ground).

http://www.washingtonmonthly.com/features/2003/0309.thompson.html

Not a bad write, thanks for the link. But at the same time, it's written by someone whose sole income isn't based on his music. I don't think it matters whether he sells his CD's or not, after listening to his music on his website, it explains why he's not got a label deal. (Michael Hedges wannabe) He doesn't even know how to upload his media correctly but he chides labels for not 'getting it." I agree they don't, but not in the way he suggests. File sharing is NOTHING like being a subway musician. File sharing is like cloning that subway musician and putting him/her in every home in America WHETHER HE WANTS TO BE THERE OR NOT! That's the problem with file sharing, the creative has lost every concept of control of their works. That....is a violation of their constitutional rights.
While I don't point this at you Imran, the one thing I get so damn sick of is reading how "people have a right to listen to whatever they want wherever they want however they want it....for free" The world has gotten so used to having a soundtrack playing behind their lives that they expect that soundtrack to play for free. Wrong. Someone paid the cost of recording that soundtrack, it's theirs to control and be remunerated for. I challenge any street musician that has a day job to be a street musician full-time, and at the same time, maintain a decent quality of life. Only the IP related industries have people conspiring to steal their products 24/7. If any other industry saw this sort of behavior, we'd be living in a complete police state, IMO. If you steal a snickers bar right now, today, you are more heavily prosecuted than if you steal a song from a CD and replicate on Kazaa/Gnutella, Morpheus, whatever. That is so offensive it makes me sick to consider. No one has a right to music in their life unless they pay for it at some level. Even ancient Rome recognized this, so did England. And so did the founding fathers of this country. So if folks can't see the morality in it, then they need to at the least see the law in it.

Oh, I'm definitely not one to do the free downloading thing. I've downloaded in the past when it was a new thing, but as an artist of a different type myself (writer, primarily), I value the work of another artist enough to respect the fact that they created it with the desire to earn a living. It's their right. For a while now I've refused to download anything the artist hasn't given permission for, and I urge friends to do the same.

Heck, songs are only 99c a pop now on iTunes or whatever, and you can listen to them before you buy them. The only complaint I ever saw in file sharing that rang true to me is that record companies tend to bamboozle you a bit by shoving 11 crap tracks into a cd with 1 good track that they market in the most profitable way, regardless of the style or genre of the other 11 tracks. That's almost the textbook definition of bamboozle.

But iTunes and services like it have changed that. You buy what you like, when you like it. No force, no waste of your own money. And if you want a whole CD, it's usually only 9.99 - often cheaper than 99c a song. Or there's Virgin Music, where you can scan a CD and listen to every track in the store before buying.

I look at it this way - with every bad thing, comes good results (i.e., the fix). The thing the Internet has ultimately given people is the ability to really force change in generally unchangable corporate interests. It's a form of competition, though illegal it may be. Ultimately it caused companies like Apple to address the real issues of convenience, price, value, etc., and boom, they're raking in the bucks.

Now, like you mentioned Douglas, we just need an iTunes for video and film licensing. I agree that the Creative Commons thing will take a while to catch on, but in the past year or so, it's been popping up everywhere. I do think that while it will be hard to address the needs of currently established artists, I daresay that as time progresses, new artists will take it (or an evolution of it) to heart. Eventually, after all, U2 or Madonna surely HAVE to stop singing. But then again, there's the Rolling Stones, who absolutely refuse to stop, and will all probably die while on stage.

I do have high hopes for the next few years. I think, right now, for all types of media, we are experiencing the growing pains of a Distribution Renaissance.

Just as a clarification....labels rarely determine what tracks an album contains. Artists and their producers do. For some reason, buyers of music are deluded into thinking every work of art is equal in passionate or creative erudation.
It doesn't work that way.
Of the more than 300 albums I've recorded, produced, played on...less than 20 have had hits, 9 have been Grammy nominees, and 2 have won. And oddly enough in some cases, the songs I thought the public would like weren't, and the ones I hated were hits.
But for the most part, artists control most what goes on the record. The producer has a lot of say in the matter too. If you are a Garth Brooks, Madonna, Celine, Cher...the artist has absolute control in most cases. At my level, the label might ask for different mixes of songs, but rarely do they ask for a song to be dropped unless it's offensive.
Point is, don't blame the label if you don't like the songs on the album.
NO ONE can write a hit every time. Especially in today's ridiculously fickle marketplace. Oh how I long for the days when a record like Dark Side of the Moon can be on the charts for decades instead of the days when a Britney Spears tune is the biggest thing in the world for a couple weeks.
Like the link you submitted, that guy isn't creative at all. He's a parrot of Michael Hedges. But...he's making cash. Where's the incentive to be creative and original anymore? It's fleeting, it's faithless, and it's subject to the whims of today's buying world that doesn't buy anymore, they steal instead.
Yup...I've got a bad attitude. Ever since I discovered there is an online Douglas Spotted Eagle Radio station, I've become jaded. :>-)

Ever since I discovered there is an online Douglas Spotted Eagle Radio station, I've become jaded.Is there really one, i.e. one that isn't affiliated with you?

There really is one, and it's my music, but I have nothing to do with it. I've sent Virgin after it, but who knows what they'll do. (I record for Higher Octave/Virgin)

Doug, do you own the copyright, or does Virgin?

Depends on the work, but since they own publishing rights, regardless of me owning copyright, it's easier for them to go after it for reasons of resource. Some works are joint copyright, most are mine exclusively. Some are BMG/Windham Hill, and some are still yet another publisher. I've been with 5 publishers in my 15 year career.
I should explain that they are using the radio station to sell CD's, but I'm not happy with the full-time, 24 hour stream of the music. Therein lies the problem.
I've written to the webstation to ask if they pay ASCAP or BMI, and received no response. I need to get w/ASCAP/BMI and find out if they are a licensee. If I was seeing any significant form of sales from the airplay, I'd probably not have an issue with it, to be truthful. it all comes down to cash, doesn't it? :-)