Copyright Archives - Polikarpov Law Firm

Question 1

Is copyright registration of a musical work compulsory and what advantages does it offer

Accepted Answer

Registration of copyright for a musical work is not mandatory. According to Ukrainian law, copyright arises automatically at the moment of creating a work and fixing it in any objective form (for example, in the form of sheet music or a sound recording). This means that your musical work is protected by law from the moment you created it, regardless of whether you applied for registration or not.

However, voluntary copyright registration offers a number of significant advantages:

Official proof of authorship: A registration certificate is an official document issued by a state authority (UKRNOIVI) that confirms your authorship of a musical work. It can be decisive evidence in court in case of a copyright dispute or if your music is used illegally.
Fixing the date of creation: Registration fixes the date of application, which can be equated with the date of creation of the work. This is especially important in cases where it is necessary to prove the priority of creation, for example, when plagiarism is suspected.
Simplified defence procedure: In case of copyright infringement, having a registration certificate makes it much easier to prove your rights and bring the infringer to justice. You will not need to spend time and effort on collecting additional evidence of authorship.
Preventive effect: Information about registered copyright is public. Potential infringers, knowing about an officially registered work, may refrain from using it illegally for fear of legal repercussions.
Additional possibilities: In some cases, a certificate of registration may be needed to enter into licence agreements, grants or competitions.

So, although registration is not compulsory, it is a powerful tool for protecting your rights as the author of a musical work. It provides official proof of authorship, records the date of creation, makes it easier to defend your rights in the event of infringement, and can have a preventative effect. If you are serious about your musical creation and want a strong legal defence, copyright registration is a recommended step. You can contact the lawyers of Polikarpov Law Firm for registration and detailed information about the procedure. We will be happy to advise you.

Question 2

What is the difference between the rights of the author of the music and the rights of the author of the lyrics in a song, and how these rights are regulated in the case of co-writing

Accepted Answer

A song is a complex copyright object because it usually consists of two independent works: music (melody, harmony) and lyrics (poetry). Accordingly, there is the author of the music (composer) and the author of the lyrics (poet), each of whom has separate copyrights for his or her work.

Difference between the rights:

Music author: Has exclusive rights to the musical component of a song. He or she may authorise or prohibit the recording of the music, its public performance, reworking (e.g. creating an instrumental version), use in audiovisual works, etc.
Author of the text: Has exclusive rights to the text of the song as a literary work. He may authorise or prohibit the publication of the text, its translation, recitation, use in combination with music, etc.

Co-authorship:

When both a composer and a poet work on a song, they are considered co-authors. Their relationship and rights are governed by co-authorship legislation and, preferably, by a written contract between them.

Basic principles of coauthorship in song:

Equality of rights: As a general rule, co-authors have equal rights to a joint work, unless otherwise provided by contract.
Indivisibility of copyright: The copyright in a song as a whole work is indivisible. This means that neither co-author can independently, without the consent of the other, transfer exclusive rights to the entire song (music and lyrics together) to third parties.
Right of use: Each co-writer has the right to use the song as he or she sees fit, but with due regard for the interests of the other co-writer. For example, the author of the music may use the melody in an instrumental work, but may not transfer the rights to use it in another song with different lyrics without the consent of the author of the lyrics.
Distribution of income: Income from the use of the song is shared equally between the co-writers, unless otherwise provided for in the contract.

Importance of the contract:

In order to avoid conflicts and misunderstandings, it is recommended to have a written contract between the co-authors. The contract should clearly define:

The allocation of rights and responsibilities between the co-writers.
The order of use of the song.
Distribution of income from the use of the song.
Dispute resolution procedure.

So, the author of music and the author of lyrics have separate rights to their works within the song. In case of co-authorship, their rights are equal, and the copyright to the song is indivisible. To clearly regulate the relationship between the co-authors, it is recommended to conclude a written contract. Polikarpov Law Firm lawyers will help you understand all the intricacies of copyright law and draw up a contract that suits your interests.

Question 3

How do you recognise plagiarism in music and what steps should you take when you spot it?

Accepted Answer

Plagiarism in music is the intentional appropriation of another person’s musical work or part of it (melody, harmony, rhythm) and passing it off as one’s own. This is a serious violation of copyright law and can have legal consequences.

How to recognise plagiarism:

Careful listening and comparison: The simplest but most effective way is to listen to music carefully and compare a suspicious piece of music with your own. Pay attention to similarities in melodies, harmonic sequences, rhythmic patterns, and arrangements.
Use of specialised software:
- Music recognition programmes (Shazam, SoundHound): Although they are designed to identify tracks, they can be used to find the original of a suspicious piece of music.
- Audio comparative analysis software: Such programs analyse sound waves and detect similarities between two pieces of music. They can be useful for detecting partial plagiarism, when only a fragment of a piece of music has been borrowed.
- Online plagiarism checking services: Some websites offer plagiarism checking services by comparing the uploaded file with extensive music databases.
Analysing musical notation: If you have access to sheet music, comparing sheet music can reveal identical or substantially similar melodies, harmonies, and structure of a piece.
Consult music experts: In complex cases, musicologists or copyright experts can be consulted to conduct a professional analysis and provide an opinion on the presence or absence of plagiarism.

Steps to be taken when plagiarism is detected:

Fixing the fact of infringement:
- Save the link to the web page where the suspicious work is posted.
- Make a screen recording or audio/video recording that clearly demonstrates the fact of plagiarism.
- Make a note of the date and time the offence was discovered.
Collect evidence of your own authorship:
- Prepare evidence to prove that you are the author of the original work: sheet music, audio recordings, videos of the creation process, copyright registration certificate (if available), correspondence confirming the creation of the work, and the like.
Attempting a pre-trial settlement:
- Contact the infringer: Write a letter to the person or organisation you believe has infringed your rights, outlining your grievances and demanding that the unlawful use of the work cease.
- Send a formal complaint: If contact with the infringer is unsuccessful, send a formal written complaint detailing the infringement, citing evidence and making clear demands.
Appeal to the court:
- If pre-trial settlement fails, go to court with a statement of claim for copyright protection.
- For this purpose, you will need qualified legal assistance. Polikarpov Law Firm attorneys specialising in copyright law will help you prepare a statement of claim, gather the necessary evidence and represent your interests in court.

Remember: the earlier you start to act, the more chances for successful defence of your rights. Don’t be afraid to stand up for your creativity and seek professional help.

Question 4

What is a public performance of a musical work and whether you need to obtain the author's permission to perform his music at a concert or in a restaurant

Accepted Answer

A public performance of a musical work is any performance of music that takes place in a place open to the public or where a significant number of persons other than the usual circle of family or close acquaintances are present. It also refers to a performance that is broadcast by technical means (radio, television, Internet) in such a place.

Examples of public performance:

Concerts, festivals, performances of musical groups in clubs, bars, outdoor venues.
Broadcasting music on radio and television.
Playing music in shopping centres, shops, restaurants, cafes, hotels, gyms and other public places.
Use of music as background accompaniment during public events, shows, exhibitions.
Public performance of music using technical means (e.g. loudspeakers in a stadium, on the street).

Do I need to obtain authorisation from the author?

Yes, any public performance of a musical work requires permission from the author or other copyright holder (such as a music publisher). This rule applies whether or not the performance is commercial (i.e., whether or not the performer receives payment for the performance).

Exceptions:

There are some exceptions where authorisation is not required, such as for educational purposes in educational institutions or for official ceremonies. However, these exceptions are clearly regulated by law and are limited.

How to obtain authorisation?

In practice, authors are rarely in charge of authorising the public performance of their works themselves. This function is usually performed by collective rights management organisations (CRMOs).

CMOS:

Act on the basis of contracts with authors and manage their property rights on a collective basis.
Issue licences for public performance of musical works to users (radio stations, TV channels, restaurants, concert venues, etc.).
Collect royalties for public performance and distribute them among authors.

What to do if you want to publicly perform someone else’s work?

Find out if the work is managed by a CMO: There are several CMOs in Ukraine, the largest of which is the UAASP. Check the website of the respective CMO to see if there is information about the author and his/her work.
Contract the CMO: If the work is managed by a CMO, you will need to enter into a licence agreement with the CMO for the public performance.
Pay royalties: You will be contractually obliged to pay royalties for each public performance of the work.

Liability for illegal public performance:

Public performance of a musical work without authorisation is a violation of copyright and may entail civil, administrative and even criminal liability.

So, public performance of music always requires permission, which is easiest to obtain through the UCPU. This ensures the observance of authors’ rights and allows legal use of music in public space.

Question 5

Whether an arranger can be considered an author, and what are his rights and obligations in relation to the author of the original musical wor

Accepted Answer

An arranger is a person who reworks an existing musical work, creating a new version of it that differs in instrumentation, harmonic accompaniment, texture, tempo, etc.

Can an arranger be considered an author?

Yes, an arranger may be considered the author of a derivative work, which is an arrangement. Provided that the arrangement contains the arranger’s creative input and is a new, original work and not merely a technical arrangement of the original, the arranger is recognised as the author and acquires copyright in his arrangement.

Arranger’s rights:

Exclusive right to use the arrangement: The arranger has the right to authorise or prohibit the use of his arrangement, including its recording, public performance, distribution, processing, etc.
Right to Name: The arranger has the right to request that his/her name (or pseudonym) be mentioned whenever the arrangement is used.
Right to inviolability of the work: The arranger has the right to oppose any perversion, distortion or other alteration of his/her arrangement which may damage his/her honour and reputation.
Right to remuneration: The arranger has the right to receive remuneration for the use of his arrangement.

Responsibilities of the arranger:

Obtaining permission from the original composer: The most important obligation ofthe arranger is to obtain permission from the composer of the original musical work (or other copyright holder) to create and use the arrangement. Without such permission, the arrangement is illegal and is considered copyright infringement.
Respect for the rights of the original author: The arranger must respect the rights of the author of the original work, and must not allow distortion of the original, which may damage the honour and reputation of the author.
Indication of the authorship of the original work: When using an arrangement, the name of the author of the original musical work must always be indicated.

Relationship between the arranger and the original composer:

Interdependence: The rights of the arranger are derived from the rights of the original author. The arranger cannot exercise his arrangement rights without the consent of the original author.
Contractual regulation: The relationship between the arranger and the original author is most often regulated by a contract, which defines the conditions of use of the original work, the rights and obligations of the parties, the amount and procedure of payment of remuneration to the arranger, etc.
Disputes: In case of disputes between the arranger and the original author, they can be resolved through negotiations, and in case of failure to reach an agreement – in court.

So, the arranger is the author of the derivative work and has the corresponding copyright. However, these rights are inextricably linked to the rights of the author of the original musical work, and the arranger is obliged to obtain permission to create and use the arrangement. To avoid misunderstandings and conflicts, it is recommended to conclude a written contract between the arranger and the author of the original work. Polikarpov Law Firm lawyers will be happy to help you understand all the intricacies of copyright for musical works, including arrangements, and draw up a contract that meets your interests.

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