“Hey, that’s my song; they stole my song!”
What do you do when you’re watching a tv show or a commercial and you hear your own melodies in the background? Or you’re listening to the radio in the car and you hear a song that sounds just like yours. Maybe it’s the same melody or maybe it’s a lyric. Maybe it’s both! Perhaps it’s not exactly the same, but it’s similar enough that you think it’s your work. You wrote it first. Now what do you do? Well, start with what you don’t do. Don’t get on the phone to the artist, or the TV show. And don’t put it on Facebook or Twitter. The first thing you do is calm down, which won’t be easy. It’s a personal affront when we think our artistic expression has been stolen. But take a deep breath and move through these five basic steps.
1. Get your copyright properly registered.
Register your copyright! If you’re in the United States, that means registering with the U.S. Copyright Office at the Library of Congress.
While it’s true that your work is “copyrighted” from the moment of conception, good luck with that in an actual infringement action. This is not something you skip. Don’t believe any of the workaround ideas you may have heard. Don’t just type a “©” beside the title; don’t mail yourself a copy of a CD: don’t try any other sort of psuedo copyright method. You need a registered copyright; it costs $35; and timeframes matter, so go do it.
2. Assemble your evidence.
In steps four and five you’ll enlist the help of professionals and they’ll need facts and evidence to do their jobs. Begin to collect and organize the materials that show you wrote your own song — materials that show when you wrote it; any software files from the creation of the song, any recordings of the song and most importantly the recording of the version that you published or distributed — the one that hopefully matches what you sent to Library of Congress when you registered the copyright; and also any evidence or records that show how the infringer might have heard your song. Get together the files of the infringing song as well, and keep track of the song’s successes.
3. Consider, just consider sitting tight a while.
Are we talking about a new release by a major artist? You might be itching to go go go, I understand. You’re gonna sue them into oblivion!” But has the song made any money? Is there anything to sue? If it’s already a worldwide hit record, sure, get going. If not, it might be worth letting it earn. Let it be a hit! Let it make a pile of money! Why? Because if someone stole your song, you’re going to be seeking damages — the non-statutory type of which is the percentage of the song’s profits that are attributable to your copyrighted material. Did you get that? In other words, if the song is a 100% ripoff, you might sue for all the money. If they stole just the chorus, you might sue for half the money. This is where musicology comes in. A musicologist will determine not only whether your song was stolen (more on that later), but exactly how much of the song is yours. You and your lawyer take that information and calculate non-statutory damages.
Statutory damages might apply too, but that’s beyond the scope of this article. Ask an attorney. I’m not an attorney. I’m a musicologist.
4. Get a good lawyer.
Yes of course, lawyer up! Do not call the infringer yourself. Get yourself a good attorney. And not just the Attorney At Law down the street. Find one that specializes in entertainment and intellectual property law. Here, let me google that for you… attorneys “entertainment and intellectual property”
5. Find a good forensic musicologist.
It’s probably going to be the first thing the lawyer asks anyway. “Has a musicologist looked at this for you yet?” A musicologist is a music expert who is also familiar with intellectual property law. Above all, to make an infringement case you need to demonstrate substantial similarity between the two songs. A musicologist will evaluate the similarities and their significance. He will help you and your lawyer know if you have a case. He will also work to calculate the above-mentioned degree of infringement that will determine the damages you’re potentially due. And very importantly he’ll foresee the opposing arguments and challenges you might face along the way.
The American Musicology Society maintains a list of musicologists.