Legal and Practical Problems of Broadcast Before Registration or Clearance of Songs

By W. Michael Milom

The goal of most songwriters is to hear their song on the radio - as frequently as possible. Radio airplay is the principal method of promoting sales of commercial recordings which generate royalty income for songwriters and music publishers. Airplay also produces public performance royalties, the largest single source of revenue for most songwriters and music publishers. In light of the importance of airplay and other public performances, songwriters are often unsure whether they should solicit or permit a demo or other non-commercial recording of a song to be broadcast before the copyright is registered with the United States Copyright Office or appropriate clearance forms are filed with the performing rights organization with which the writer is affiliated.

Since copyright protection is acquired upon creation of a song, broadcast of the song before registration of the copyright does not prevent or impair the copyright protection available for the song. Registration of copyright is not mandatory under the current copyright law but is necessary in order to bring an infringement suit with respect to works originating in the United States and to preserve important remedies for infringement of the copyright. If an infringement occurs prior to registration, the copyright owner will not be entitled to recover statutory damages under Section 504(c) of the Copyright Act to receive an award of costs and attorneys' fees that may otherwise be available under Section 505.

Loss of infringement remedies before registration may be particularly important in connection with pre-registration airplay. An essential element of proof in an infringement case is proof that the infringer had a reasonable opportunity for access to the original song. Broad public exposure through broadcast increases the opportunity for infringement in a context that makes it very difficult to identify an alleged infringer as someone who heard the broadcast.

Since access by broadcast is often difficult to prove, a songwriter should be aware of the risk inherent in pre-registration broadcast. Registration, of course, does not reduce the risk of infringement or diminish the difficulty of proving access but does assure the songwriter of having the full arsenal of legal weapons available if infringement occurs. Thus, if airplay is anticipated or desired prior to the release of a commercial recording or other exploitation of the song, the songwriter should consider registering the copyright to preserve infringement remedies and obtain the benefit of the legal presumption of validity that accompany registration.

There is also an important reason to avoid broadcasting a song prior to clearing the song with the performing rights organization of which the writer and publisher are members. Unless furnished the appropriate information, usually called "clearing the song" with the appropriate performing rights organization, that organization probably will not pay you as a result of the airplay received. Performing rights organizations such as ASCAP and BMI distribute license fees from users of live or recorded music based upon a statistically representative sampling of broadcast performances. Unless the performing rights organization has the information necessary to identify a particular song as part of it repertory, the performance may not be recognized and no payment will be allocated. Even though it is unlikely that one or even a few local broadcasts will be sufficient to entitle the writer or publisher to payment, you can be certain that your song will not receive credit if it is not cleared with the proper organization prior to broadcast. SESAC's basis for distributing public performance revenue is different than that utilized by ASCAP or BMI, but it is still advisable for SESAC members to provide information on their songs to that organization prior to significant exposure through public performance.

The broadcast of a song prior to registration of copyright or filing performing rights clearance forms will not violate any state or federal law and will not cause forfeiture of your copyright or prevent you from collecting performance royalties for future performances. Even though there may be occasion when the benefits derived from pre-registration airplay outweigh the risks involved, to protect fully the rights of the songwriter and publisher, registration of copyright and clearance with the proper performing rights organization should be accomplished prior to broadcast or other public performance.

W. Michael Milom is an attorney with Wyatt, Tarrant, Combs, Gilbert & Milom, a legal firm with offices in Nashville, Louisville, Lexington, Frankfort and New Albany, Ind. Mr. Milom works in the Music Row office.