Are the songs/sound-recordings published or UN-published?

Dear Michael, in this hypothetical, it sounds like both the demo recordings and the upgraded recordings, each by the same artists (I assume), are both separate instances of unpublished works because there are no facts in this hypothetical of a given song being published. The published versus unpublished distinction merely comes down to whether or not the given songs were published or unpublished at the time that their copyright registration application(s) are filed at the U.S. Copyright Office. Its possible to file songs as unpublished at the U.S. Copyright Office and then at any point after that filing, a song gets published - it could literally be a second after or years after. Now as to whether or not a new copyright registration should be sought in the upgraded recordings, that depends. If the only difference between the demo recording and the upgraded recording is of sound quality and it was the same artists in both recordings, then a new copyright registration in the upgraded recording likely should not be sought, as there is nothing new creatively in the upgraded recording that warrants protection; in other words, the copyright registration in the demo recordings should also protect the upgraded recording. However, if the upgraded recording does introduce something new from a creative perspective, then the upgraded recording may warrant a new copyright registration application - but in that case the prior registration should be noted in the new copyright registration application and the new copyright registration application should also disclose what’s the new creative aspects that are seeking protection. If there are different artists in the upgraded recording, that could warrant filing a new copyright registration application - similarly, if the producer and/or sound engineer in the upgraded recording change something musically, not just merely the sound quality, that could warrant filing a new copyright registration application in the upgraded recording. And if others are involved in the creative process, make sure copyright assignments are in writing.

​@@IPAttorneyEric Thank you for your response. Very informative! I basically had demos of my songs that are finished songs, but not professionally recorded. I just recorded them with guitar and vocals into a simple voice recorder app. Before I show my songs around to other artists and musicians, I wanted my work to be protected with registration. Given a fully completed and professionally recorded song that is registered as Unpublished, but is subsequently published thereafter. Do I "upgrade" the registration of the song on the copyright website? I did see that option. Thank you in advance.

Dear Michael, once you've secured a U.S. copyright registration for an unpublished song, I generally think you don't have to "upgrade" that registration over to "published" once publication does occur for that song. Obtaining the U.S. copyright registration, whether for a published song or an unpublished song is all one is generally after, because its the registration itself that creates legal presumptions of copyright validity and ownership that one wants AND its the registration that opens up access to copyright infringement lawsuits in U.S. federal district courts as a means of enforcement. The whole published vs. unpublished is a pre-internet artefact that for many of today's modern scenarios is simply that of an important distinction. @@michaelkiese7794

@@IPAttorneyEric thank you!

@@IPAttorneyEric Thank you so much for your time and informed replies! One final follow up question as I have been researching the subject. As I understand it, there are 2 separate copyrights that one must register: 1) Musical Work copyright 2) Sound Recording copyright. Assuming I completely wrote the entire song (melody, lyrics, etc), professionally recorded the song myself, and performed on the recording...does the registration as described above sufficient in securing the copyright registration for BOTH the musical work as well as the sound recording?

If your sound recordings have not been published at the time you submit your U.S. copyright registration application, then indicating those sound recordings are unpublished would be appropriate - and such a filing could be done now ahead of (before) release on a streaming platform. If you submit a U.S. copyright registration application of sound recording(s) AFTER those sound recording(s) have been streamed, you might still indicate as unpublished in the U.S. copyright registration application BUT in the Note to Copyright Office field, which is found in the Certification section, disclose when and how each such song was streamed so that the U.S. Copyright Office has all the relevant info and then the U.S. Copyright Office can make the determination if published versus unpublished was the way to go.

When one is both the songwriter and the song performer, then a sound recording U.S. copyright registration application submission may generally be used to protect both the musical composition (musical works) copyright and the sound recording copyright. The musical composition (musical works) copyright protects the written form of the song(s), including any written lyrics, if any (and even if you do not really generate a written form of a song in your songwriting process). So, in that situation (doing a sound recording filing to cover both types of song copyrights) one does NOT have to upload the lyrics in written form - it is usually sufficient to upload the audio file(s) of the song(s) - as that should automatically protect the lyrics in any song(s), in written form and/or in the sound recording form. When completing the Author section of the U.S. copyright registration application one would want to make sure the following is included for the Author Created field: “Sound Recordings and Musical Works (with or without lyrics)” or some similar language.

Thank you...I'll proceed using the sound recording option for registration.​@@IPAttorneyEric

@@IPAttorneyEric Eric, Just had another question. Regarding music that's already copyrighted and recorded. I've done my own versions of different i.e. worship songs. Not necessarily changing the melody but the arrangements and feel per se... Are my musical versions/interpretation able to be registered and are copyrightable? If so, how would I go about doing that? Thanks again for your help. I'm very new at this stuff..

In general, one’s original works of authorship are protected by U.S. copyrights and such an author may register those copyrights at the U.S. Copyright Office. However, whenever the given work (e.g., a song) has contribution(s) from anyone other than yourself, you would generally need to identify those elements of others in your given U.S. copyright registration application. The contributions from others goes into the "limit" section of the given U.S. copyright registration application - because you are limiting your copyright “claim” to not include the contributions from others. Also, consider if your original contributions are to the written form of the song (i.e., to the musical composition / musical work) and/or with respect to the sound recording. For example, consider a “cover” song. The new artist that is re-recording a sound recording generates a new sound recording copyright that may be registered. However, the original musical composition should be disclosed. @@valdemar1999

​@@IPAttorneyEricmakes sense...thank you, again.

In general, you should not have to re-register. But ... Often with albums there are some additional creative works, in addition, to the music, such as visual arts (e.g., the album cover); and/or perhaps the arrangement and selection of the songs order in the album is important to you (e.g., if the album overall may be telling a story). So, sometimes you might want to register the copyrights in an album as well even if all the copyrights in the included songs have all already been registered - in which case, you do want to note which material in the album has been previously registered. And regarding album artwork, in general you may to make sure you own the copyright in any such visual arts - either because you were the author yourself OR because in the written agreement with the graphic artist there is language that transfers (assigns) the copyright owned by the graphic artist to you. And then you have to decide whether to register the copyright in the visual art on its own and/or as part of the album.

Cool, thank you very much @@IPAttorneyEric

Usually yes. In general, this particular approach may be used to seek U.S. copyright registration of ten (10) or less "unpublished" songs.

Dear Dr. Weiss, Currently there is no deadline nor any requirement that a given creative work that starts out as unpublished must become published at some point in the future. So, technically a given creative work never has to be published. Currently, the U.S. Copyright Office maintains this position of, "a public performance or display of a work or a mere posting of the work online (such as on Facebook) does not in itself necessarily constitute publication." ... "This is true regardless of the number of people who viewed the performance or display." "If the applicant provides a date of publication in the application and indicates that the work was performed, televised, broadcast, displayed, or exhibited on that date, the registration specialist [employee of the U.S. Copyright Office] may communicate with the applicant and explain that merely performing or displaying a work in public does not constitute publication under U.S. copyright law, no matter how many people are exposed to the work.” In the future, I think it is possible that U.S. copyright law will evolve so that online postings of creative works that are generally accessible by the public will likely be deemed a "publication" but the current state of the law is not at that point; currently, "publication" under U.S. copyright law is entrenched in pre-internet concepts.

First I want to say thank you what is publication in the eyes of the US copyright

I'm sorry I just found this can you translate what they are trying to say

Those who live outside of the U.S. may still register their copyrights with the U.S. Copyright Office; and that may be a good idea if your creative works (e.g., music) are being used in some form within the U.S. But the U.S. copyright registration only gives you protection in the U.S.

First, you are not legally required to register the copyrights in any beats you create. But if you want to protect yourself from others copying and/or using your beats without your permission, then you will likely want to pursue copyright registrations at the U.S. Copyright Office. And if you do see registration of your copyrights, ideally you want to do that before any infringement occurs - because then you may be able to pursue “statutory damages” against the infringer in a copyright infringement lawsuit. Whereas, if you register after the infringement, you may only be limited to getting “actual damages.” And the problem with actual damages is that they are often small and/or difficult to prove. With the statutory damages you are not required to prove them. As to your question published or not published … I actually do not know the answer for certain. Much of music copyright law evolved before the Internet even existed. So, a publication back then was when vinyl records of the music were sold or distributed to be sold, and that later applied to 8-track tapes and audio cassette tapes, and then that also later applied to CDs. All of that had in common that the music was on some physical tangible thing that when sold actually changed hands. Then we evolved into an era where music was downloaded, and now we are in an era where music is largely consumed from streaming and not so much downloading going on. But downloads were kinda like the old school vinyl, tapes, and CDs, in that at least a digital file was changing hands. But streaming is completely different. “Publication” per U.S. copyright law is legally defined as, “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication.” If we try to apply that definition to your situation, then when you sell a beat to a client/customer of yours, IF you are transferring a digital file of the given beat to your customer/client, then I would say according to that definition that the sold beat has been published.

@@IPAttorneyEricwrote, “Whereas, if you register AFTER [emphasis] the infringement, you may only be limited to getting “actual damages.” Authors/Copyright owners, who “timely” register their works (either BEFORE the copyright infringement begins or *registered WITHIN THREE-MONTHS of the infringed works FIRST-date of publication),* can pursue statutory damages and their attorney & legal fees (at the court’s discretion) against US infringers. 17 USC § 412(2).

@@cnlicnli Personally, I find the language of section 412 (title 17 U.S.C. section 412) to be confusing. But basically, what section 412 means is that copyright owner has three (3) months from the first publication date of their work to register the copyright in their work in order to be allowed to pursue “statutory damages” and/or having their “attorney fees” covered by the other side in a copyright infringement lawsuit. If it has been more than three (3) months since the first publication of their work and obtaining their copyright registration, then “statutory damages” and their “attorney fees” are not available. If more than three (3) months had passed since the first publication of their work, then the copyright owner must have obtained their copyright registration before infringement occurs in order to be allowed to pursue “statutory damages” and/or their “attorney fees.” And note, the first publication that section 412 refers to is of the copyright owner’s work and not publication of the infringing work. When "statutory damages" are not available, then the copyright owner can only pursue actual damages. If "statutory damages" are available, then the copyright owner can pick between going after "statutory damages" or going after actual damages.