# Does Copyright of Cues Make Sense?



## clarkus (Jun 27, 2014)

Emmett Cooke, who wrote "The Business of Music Licensing," writes me a surprising note (see below). I have to admit I see the sense of it, especially when you consider what it would take to litigate a transgression. 

It's fascinating to me that I've been told to "Copyright everything," but an apparently well-informed attorney says I would need 100 k to pursue a claim in a court that won't accept the case, in any event, unless there's at least 75 k in play. 

Further, copyrighting "as a collection" offers - I am ALSO told - limited and problematic protection.

This is not just of academic interest to me. I've got a collection of cues I am have finished & have registered with ASCAP.

I'm very curious to hear any informed pushback. Need to make a choice.

Here's the smoking gun:

Emmett Cooke

1:15 AM (5 hours ago) to me

"Hi Clark,

I don't actually copyright any of my tracks - you can do it, but honestly I haven't found the need to. If someone has a copyright claim against you, by having the original dated source files, you can prove you created it.

I find that to copyright every track would be time consuming and expensive ..."


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## RiffWraith (Jun 27, 2014)

Hi. I am not an attorney, but I know some stuff. MichaelL_ is _an attorney, and therefore knows more about this than I do. Maybe he can offer some more advice.

Anything that follows is pertinent to the USA only; laws vary in other jurisdictions.

- The author of a work owns the copyright to that work as soon as it has been created, and fixed in a tangible medium (paper, audio recording). Registration with the copyright office is not necessary to obtain copyright.

- You MUST register the work with the copyright office to have the ability to file suit in court. 

- Copyrighting "as a collection" offers you the same protection as if you submitted each work individually. The issue comes into play when selling/transferring ownership of part of that collection, as everything is under one #.

- A collection of cues finished & registered with ASCAP may help in certain circumstances, but is not the equivalent of having those works registered with the copyright office; do not think that cues registered with your PRO is sufficient, as it may not be.

The $75,000 threshold is a matter of interest. To me, anyway. Civil cases brought are in fact subject to that threshold - but only when the opposing parties are in different states. That is known as 'diversity jurisdiction'. Title 28, if memory serves. If the parties are in the same state, that $75,000 threshold does not apply, as the case is filed not in Federal court, but in State court. Each state has it's own threshold, but is almost always (if not always) going to be far less than $75,000. The area of interest to me in this matter is: 

If you live in NY and need to file a copyright infringement claim against someone in CA, you should be able to because:

1) The award of statutory damages can be $150,000. Which, obviously, meets the $75,000 threshold.

2) A law was broken. 'Federal-question jurisdiction' is when a Federal court will hear a civil case, b/c the plaintiff is alleging a violation of Federal law. If the guy in CA has engaged in copyright infringement, he has broken Federal law.

And I say "should" above, as this is still a grey area for me.

In any event, definitely register ALL of your work. It's best to be on the safe side.

Cheers.


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## Mike Greene (Jun 27, 2014)

It's pretty rare that I'll register a cue or song. Even when registering "collections," it can get really time consuming and the cost isn't trivial. For me, it isn't worth the time because the chances that it will matter are so low.

You do have to register a copyright before you can sue, but that registration can be _after_ you get ripped off. So as long as you can prove authorship (if ASCAP has mp3's, I'd imagine that is sufficient), then you're still protected. If you find that you've been ripped off, _then_ register the song and sue to your heart's content.

However (and this is a big "however"), if you register the copyright _after_ your song has been infringed, then you can *only* sue for actual damages. (No "punitive" damages.) Actual damages can still be really high, though, because they include not only what you believe you should have been paid had they licensed it from you, but it's also typical for the infringed party to claim that they had big plans for this song, and those plans are now ruined because the song has now been tainted by the commercial use. (That happened to me. Or at least it _almost_ happened to me until I got myself severed from the actual guilty party. Long story. Bottom line - be careful who you co-write with.)

If a song is registered _before_ it is infringed, then you get an additional bonus of being able to collect punitive damages. As Jeffrey notes, they're more properly called "statutory damages" and have a cap of $150,000. That's only for what's called "willful infringement," though, meaning they knew they were ripping you off.

The other incentive to registering ahead of time is that you qualify to have your attorney fees paid by the defendant, if the judge is so inclined. (Copyright law is one of the few fields where that can happen.) This can be huge, obviously, but bear in mind that almost no copyright cases ever go to court. They invariably settle. So this is more of a negotiating chip, rather than a real life factor.

To me, the possibility of collecting compulsory damages and the possibility of getting my legal fees covered are the only reasons to register in advance. (Assuming I have other means of proving date of authorship.)

Be aware, though, that you're still highly unlikely to collect any of that. First, the person who ripped off your song needs to have deep enough pockets to actually pay those amounts. A scumbag ripped off one of my songs once and licensed it for a national commercial. He even used my recording, so it was slam-dunk easy to prove the theft. But after hearing the same budget you got of $100k to pursue the claim, I reluctantly let it go. (I could have included the ad agency in the claim, of course, since they had really deep pockets and they're the ones who aired the spot with my song in it. But since their involvement was unintentional and they had licensed "his" song in good faith , I didn't feel right about that.)

So now I only license songs where I think something might potentially happen one day. The good songs, in other words. (Hardly ever instrumental cues, by the way.)

One little correction - I'm pretty sure that copyright cases are always going to be in Federal Court, since copyright law is federal. If both parties are in the same state, that wouldn't move it to State Court.


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## clarkus (Jun 27, 2014)

Thanks for your input.

Do you, personally, register cues as part of a collection?


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## Peter Alexander (Jun 27, 2014)

What you need to be aware of is that in the USA, copyrights are Federal not civil. Suing in Federal court STARTS at $100K.


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## RiffWraith (Jun 27, 2014)

Peter Alexander @ Sat Jun 28 said:


> copyrights are Federal not civil.



You mean either:

Civil not criminal

-or-

Federal, not State

No such thing as _Federal not civil_. The civil suit is filed in Federal court.

And can you elaborate on what the 100k figure represents?


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## gsilbers (Jun 27, 2014)

clarkus @ Fri Jun 27 said:


> Emmett Cooke, who wrote "The Business of Music Licensing," writes me a surprising note (see below). I have to admit I see the sense of it, especially when you consider what it would take to litigate a transgression.
> 
> It's fascinating to me that I've been told to "Copyright everything," but an apparently well-informed attorney says I would need 100 k to pursue a claim in a court that won't accept the case, in any event, unless there's at least 75 k in play.
> 
> ...




there might be some confusion, or i am missing something. 

once you have you music in tangible form, ITS already copyrighted!!!! 
its yours. thats it. you make a cd, you have an mp3.. thats it its copyrighted. 

now, if you want to send your track to the library of congress to futureproof it then thats another story. thats only cataloguing it. 

if thats the topic we are discusing , then i think its not worth it unless you are making a song with a big name artist or a big time project which might warrant it. which might be why the quote from the lawyer.


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## clarkus (Jun 28, 2014)

Thanks, gsilbers -

Is there anyone on this thread who copyrights their music as a matter of course?


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## clarkus (Jun 28, 2014)

Hi, RiffWrath -

Have you ever litigated this situation?

Meaning, have you found someone has used your material, and then gotten the necessary threatening letters written by an attorney to the offending party?

I'm trying to square the contradictory advice I'm getting wit the real world, where I've got my rent money on the bank, and a little bit squirreled away in a Roth & that's about it. Or, to say it another way, if anyone wanted to see if they could outspend me as we litigated improper use, I'd be out of the game before we started.

A followup question: As you make copyright part of your work-process, how do you do it? Do you copyright cues a collection, or pay the fee to the gov't individually for each track?

Thanks!


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## clarkus (Jun 28, 2014)

More intel as to what people are doing with copyright ...

(from the Music Library Report)

Paolo wrote:

You simply (okay maybe not simply) copyright them as a collection of works - all your cue titles under one main title. All that for just $55 ($85 if you mail it). Visit the US Copyright Office - Fees page and follow the links for submitting a collection of songs.

BTW: the fee used to be $35 but went up to $55 May 1st. I copyright 15 to 20 cues at a time so at $3 per cue I'm contented. 



Post Link: http://musiclibraryreport.com/forums/to ... post-16892


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## RiffWraith (Jun 28, 2014)

clarkus @ Sat Jun 28 said:


> Hi, RiffWrath -
> 
> Have you ever litigated this situation?
> 
> Meaning, have you found someone has used your material, and then gotten the necessary threatening letters written by an attorney to the offending party?



No, I have not been to court in a copyright case - on either side. Not yet, anyway.  

Cheers.


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## clarkus (Jun 28, 2014)

I would love to hear how others are working.

Do you copyright everything?

Do you copyright pieces individually, or as a collection?

Have you ever had to litigate?


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## clarkus (Jun 28, 2014)

Hi, RiffWraith - I'm not sure what Peter Alexander is referring to re: the 100 k figure. It was a number that came up in another thread (on Music Library Report) as a ballpark for "What you should have in your pocket" if you going to go to court over a music licensing claim.

We could use an entertainment lawyer on this thread.


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## gsilbers (Jun 28, 2014)

clarkus @ Sat Jun 28 said:


> I would love to hear how others are working.
> 
> Do you copyright everything?
> 
> ...



it really doesnt matter. you send to the library of congress a seal document to register stating whats on the cd/envelope. they enter it as collection or individual - but they do not listen, do not care. they write down wha yousent and store it away with a date. 
if litigation happens then you take out what you sent years before and confirm. 

here is more info 

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


litigation is expensive. well, lawyers are expensive. not sure about the 100k figure. 
but i would be interested to know if issues for smaller amounts can go through small claims court. like if me and a firend singer fought for about $3000 in royalties for a song on a B movie.


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## rJames (Jun 28, 2014)

I"m not a lawyer either but it seems to me that if someone sued you over unlawful use of a cue that YOU wrote, you'd probably wish you had copyrighted it.

Say its a big dollar entity... they have money to sue... lets say you don't. 

If you have a copyright with the copyright office, I believe it would be easier to make them go away.

But if you had a sealed envelope with a CD in it, postmarked. Maybe so, maybe not.

If you want protection over your music that might get stolen and go platinum... you may still want to copyright. I'll bet the lawyers would be all over ya if you had a prior copyright with the copyright office.

Would they come around if you had a file on your comp. Don't know, maybe.


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## clarkus (Jun 28, 2014)

This just in from my post on Music Library Forum (on the same topic) ...

June 28, 2014 at 2:16 pm #16898 REPLY

Advice

Participant

"Although I would never advise anyone against filing copyright registrations, I stopped doing these a long time ago. My reasons:

(1) Stealing is still fairly rare. Not saying it doesn’t happen but not enough for me to worry about it especially if we’re talking about an instrumental that will at best end up on reality TV.

(2) As Michael L has pointed out a few times, a copyright gives you the evidence you need to file a copyright infringement lawsuit. However, you need to have $75K in damages claimed in order to file such as suit. Very few of us will ever have a track that could create that much in damages (e.g. someone steals a song and it goes on to be recorded by Katy Perry… or ends up as the theme song to a major hit TV show).

All this being said, I probably should register my best vocal songs because they would be at the most risk, I’d imagine. I don’t think a 2 minute reality TV instrumental is much of an issue.

This is NOT legal advice as I’m not a lawyer, nor do I play one on TV… or on MLR. "


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## clarkus (Jun 29, 2014)

So far, the opinions seem about equally divided, with some saying it's unwise to not go the extra mile and have a copyright issued for each piece you write; others saying for the sort of use we are talking about (short, instrumental cues and generally low income for them) it's a waste of time and money. The latter view is bolstered by arguments that theft if rare and litigation prohibitively expensive.

And a middle road has been proposed, wherein one copyrights songs with lyrics, longer works; pieces that have a chance at more lucrative use.


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## gsilbers (Jun 29, 2014)

again... 

to be clear....


you are NOT copyrighting a song.. 


you are registering it in the library of congress. 

very very different. 

im saying to keep things clear in this topic. 


once you have an mp3 or disc or writing the score down on paper ITS ALREADY COPYRIGHTED!!!!!!

outside your head... and on tangible form ITS COPYRIGHTED!!!!!

just, you know... if you start mixing up Copyrigting and registering on a serious conversation with a possible problem party ,then i think keeping it clear will help you out. which is why i keep repeating it.


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## rJames (Jun 29, 2014)

gsilbers @ Sun Jun 29 said:


> again...
> to be clear....
> you are NOT copyrighting a song..
> you are registering it in the library of congress.
> ...



More spaces and more CAPITAL LETTERS only tend to confuse the issue here.

You are correct... but, we are really talking about proving copyright aren't we. Because without legal proof that you are the owner of a copyright, you may not get copyright protection. And that is exactly what we are talking about.

I could care less whether any composer copyrights their stuff. But the first person to have work registered in the library of congress will have a much, much easier time proving they hold copyright.

The simple fact is few of us well ever need it. You might not ever need car insurance or life insurance or health insurance. But many of us buy it. That's why they call it insurance. Registering a work with the library of congress is insurance.

The policy costs $55 per album. Plus about 30 minutes of time. *Ever back up a hard drive?*


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## gsilbers (Jun 29, 2014)

i say it because there are other ways of proving proof. maybe your track made it to a tv show, whci can easily be dated, and then someone else claims copyright with a registration (a year later) o library ofn congress. 
for example. 
so registering only helps, but its not automaticallty a slam dunk. 
if your melody is similar to someone else and you register first, but the movie titanic has that same melody then there is proof that you might have access to the melody and therefore "stolen" it. even if your work is registered before. 
yes, like insurance , you might need it. but i would think insurance for health and accidents do happen a lot more than stealing melodies. (i think)

keeping the definition of copyright and registration correct imo, is very important. for anyone reading this thread anytime inow, or in the future. 

but i am still interested to know on small claim courts in smaller cases. with or w/ registration.


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## clarkus (Jun 29, 2014)

How many songs / pieces of music are permitted on an album?


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## JohnG (Jun 29, 2014)

clarkus @ 28th June 2014 said:


> Is there anyone on this thread who copyrights their music as a matter of course?



No, because it usually appears almost immediately in a copyrighted game, advertisement, or TV show or otherwise has proof of date of authorship. 

And if it's a work for hire, it's up to the producer / publisher to decide.


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## clarkus (Jun 29, 2014)

Thanks, John. It sounds like you're saying that very few of the people on this Forum place their music with non-exclusive libraries, which surprises me a little. But I'll take your word for it.


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## MichaelL (Jun 30, 2014)

Peter Alexander @ Fri Jun 27 said:


> What you need to be aware of is that in the USA, copyrights are Federal not civil. Suing in Federal court STARTS at $100K.




Just to clarify:

There is no damages threshold on claims arising under federal law (federal question). The 75K damages threshold exists where the basis of the federal suit is *diversity jurisdiction*, i.e. a citizen of one state is suing a citizen of another state.

The biggest issue is the cost of litigation vs the potential recovery.

There are two types of damages actual and statuary. The actual damages are your financial losses. Statutory damages vary depending upon whether the infringement was unknowing or willful. For unknowing infringement the statutory damages can go as low as $200. For willful infringement the damages can go as high as $150,000.

Deciding whether or not to sue is a question of strategy. This link is informative.
http://corporate.findlaw.com/intellectu ... ation.html

But… more to the point of the original question. You *cannot recover statutory damages or legals fees *if you have not registered your copyright.

What you don’t want to do is pay $150,000 to an attorney, so that you can recover $5,000.


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## clarkus (Jun 30, 2014)

Hi, Michael L -

Since the more likely reality is that one has a cue that is out there as part of a library (exclusive or non-exclusive, doesn't matter for the sake of this theoretical), and that cue might garner said composer a few 100. for a one-time use on a low-budget TV show ...

...and then it develops someone has retitled it & is using it ... and MAYBE the composer actually figures that out ...

The scenario you suggest kicks in, but at a heightened level of absurdity.

As I am hearing from my informal poll that theft is very rare, AND if I place my music with an entity that actually has the funds to make a big noise / threaten litigation, they could do so (and they might advise / create copyright at the juncture) ...

... I'm thereby more skeptical then ever that copyrighting every 1.30 cue I send out into the world needs to be part of my process.

See the top of the thread: Emmett Cooke's confession.

But I came here to get educated. I'd be glad to hear why I am reckless and ill-informed.

It just seems a significant business expense and time-suck for a composer who's just getting started & working with little funds, given the implausible scenario under which I could litigate & win.


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## MichaelL (Jun 30, 2014)

[quote="
See the top of the thread: Emmett Cooke's confession.

[/quote]


In the instance above, Emmett is talking about where someone *sues you * for copyright infringement and you have evidence to prove when you wrote something.

I am speaking about when you are the plaintiff and you want to sue someone for infringement. 

IMO the biggest danger library composers face with respect to getting sued is doing knock-offs / sound-alikes of well known music. How many Coldplay and U2 rips are out there? Some artists are very litigious.

I think that if you read the link that I posted above regarding strategy, you'll get a better understanding, of what may, or may not be worth it. 

John G, is correct with respect to work for hire works. The client is the copyright owner, and the choice to register or not is theirs. 

I often register my works as collections, because in many cases *I retain the publishing rights*. It's not difficult to register collections, but you must follow the Copyright office guidelines, i.e., you can register a collection of unpublished works, or published works (with limitations).


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## AC986 (Jun 30, 2014)

MichaelL @ Mon Jun 30 said:


> IMO the biggest danger library composers face with respect to getting sued is doing knock-offs / sound-alikes of well known music. How many Coldplay and U2 rips are out there? Some artists are very litigious.



That's right IMO.

You get asked to do a certain style but please don't rip it completely otherwise everyone gets sued. That's always in my mind. Library publishers always seem to require some kind of soundalike or "in the style of" set of tracks.


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## milesito (Jun 30, 2014)

I have gone back and forth on this myself and this is a great thread to read through...it is also to see how the opinions differ so dramatically between so many experienced professionals. 

My vocal teacher has a friend who is a song writer who claims his song was stolen by a very prominent famous singer/songwriter. It was his prized song the he had performed around...somehow it landed itself on this famous artists album pretty much word for word/note for note. My vocal coach's friend sewed this prominent songwriter and had all of the "copyright" proof...he spend well over 100k, and the deep pockets of the famous singer/songwriter were just way to vast...and as a small independent artist, he basically was screwed. His attorney said that if he had filed with the library of congress, it would have been acknowledged and the case would never have had to go that far as that is supposedly the trump card...kind of a cheap pre-nup. 

I'm not sure if that advise is all true (that filing with the library of congress is the trump card), but it really is not that expensive...it just takes time.


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## MichaelL (Jun 30, 2014)

milesito @ Mon Jun 30 said:


> I have gone back and forth on this myself and this is a great thread to read through...it is also to see how the opinions differ so dramatically between so many experienced professionals.
> 
> My vocal teacher has a friend who is a song writer who claims his song was stolen by a very prominent famous singer/songwriter. It was his prized song the he had performed around...somehow it landed itself on this famous artists album pretty much word for word/note for note. My vocal coach's friend sewed this prominent songwriter and had all of the "copyright" proof...he spend well over 100k, and the deep pockets of the famous singer/songwriter were just way to vast...and as a small independent artist, he basically was screwed. His attorney said that if he had filed with the library of congress, it would have been acknowledged and the case would never have had to go that far as that is supposedly the trump card...kind of a cheap pre-nup.
> 
> I'm not sure if that advise is all true (that filing with the library of congress is the trump card), but it really is not that expensive...it just takes time.




That's a pretty sad story. Yes, there's a good possibility that the infringer would have settled, if your friend had registered his copyright. It's not a "trump card," but if the case had merit it might have settled. However, without a registration your friend was only due actual damages, which would be very hard to prove.


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## clarkus (Jun 30, 2014)

Hi, MichaelL

Re: your comment ...

Actually, that's not what Emmett is saying, His syntax is confusing, so I can see how you'd get that impression, but he's responding directly to a question I posed to him. I wrote him asking "Do you copyright your stuff?" and he said "no." And his reason is:

"I find that to copyright every track would be time consuming and expensive ..."

In further support of his decision is the expense of litigation. The litigation he is theorizing about is litigation he, or I (or you) might undertake if we found someone was using OUR stuff. 

You raise an interesting point that any one of us might be accused of ripping someone else off. It hadn't occurred to me, as it's never happened to me. It's interesting that you say that that is a clear & present danger for anyone in the commercial music realm. I can see that.

But, trust me, this is not the litigation that Emmett & I are discussing & it's not what I am asking about in this thread. 

I am close to shoving a bunch of my music out into the big, bad world & I am just trying to figure out what people are doing. Some are registering their works, some are doing so selectively & some are not bothering until or unless their client (or gig) makes it happen.


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## musicformedia (Jul 1, 2014)

Hi guys, just to confirm what I meant when Clark asked do I copyright my tracks.

Personally, I do not copyright any of my tracks as it would be time consuming and expensive. The majority of my music is either custom work for agencies or music library work so I have never felt the need to do so.

There are a small number of people out there stealing music and re-selling it, but I don't feel that having your music copyrighted would make any difference in those cases. They know they're doing something wrong, and they don't care.

I register my tracks straight away with IMRO (Irish PRO) when they're finished. This, along with the original source files, I feel is enough to protect me. In my opinion, I'd only copyright tracks that I'm releasing commercially (ie. a cd or radio).


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## MichaelL (Jul 1, 2014)

[quote="
I am close to shoving a bunch of my music out into the big, bad world & I am just trying to figure out what people are doing. Some are registering their works, some are doing so selectively & some are not bothering until or unless their client (or gig) makes it happen.[/quote]


Clarkus, there is no uniform standard for what people are doing. As an attorney, I'm never going to advise you to not register your copyright. If for no other reason than to have statutory damages and legal fees available. That is one basic difference between the US and other countries, which is why US composers might answer your question differently.

If, however, you read the link that I posted, you'll gain a clearer understanding of whether or not you would, or should, litigate copyright infringement. The fundamental analysis starts with the value of the work in question. 

It goes without saying that the copyright to the theme from _Star Wars_ is going to be far more valuable than any one of a million cues pumped into online libraries, or libraries like Jingle Punks. The cost to litigate a copyright infringement case is easily six figures. Would you do that for a cue that might earn you a few hundred dollars? 

Imagine the scenario where one composer thinks that another composer has ripped off *his *
Coldplay knock-off!!! How do you explain that to the court? "Your honor, this is my plagiarized version of _Clocks_, not his!" :lol: 

When it comes to works for hire, the decision is up to the client. When it comes to retitled works, *no copyright registration exists for the retitled work. * That raises the question of whether a copyright registration of the original work would be effective if a retitled work is infringed. Before people start screaming "it's the music that is copyrighted, not the title," that is true, but the music corresponds to a title and to a registration number. Hence, a different title with no registration number in theory does not exist.

For my own works, if its work for hire, I leave it up to the client. For library works, for which I am the publisher, I register collections. My personal opinion is that litigating over one snowflake in the blizzard that is the world of gratis licensing for reality TV, is probably not cost effective, based upon the value of the work. 

Still, I would never advise against registration.


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## JohnG (Jul 2, 2014)

I hope that those reading this thread consider that everyone's situation differs. For some of us, copyrighting makes sense, less so for others.

It is never a wise policy to rely solely on an internet chat board like this one for legal or business advice. Even if some people here are very experienced, there is nothing like a paid professional who can understand your particular situation.

So please be careful consuming this kind of advice, here or anywhere on the internet.


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