May 25, 2017 Musicology, Opinion 2 Comments

“Hey, that’s my song; they stole my song!”

It’s not a good feeling. You’re listening to your radio or to a Spotify playlist, or maybe you’re watching a tv show or a commercial and you hear music that sounds just like something of your own. 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?

Let’s start with what you don’t do. Don’t get on the phone to the artist, or the TV show. And don’t jump on Facebook or Twitter and tell the world. Instead, take a deep breath and move through these five basic steps.

1. Find a good lawyer.

Yes, of course, you lawyer up! Instead of contacting the infringer on your own, bet yourself a good attorney. And perhaps not just the shingle from down the street. Ideally, find one that specializes in entertainment and intellectual property law.

We’ll google that for you. Attorneys “entertainment and intellectual property”

This site does NOT provide legal advice. I am NOT a laywer. My expertise and opinions are musical, not legal. Nobody is substitute for your own personal lawyer. That’s step one.

2. Get your own copyright properly registered.

It’s a must. 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 may be true that your work is copyrighted from the moment of conception, good luck with that in an actual infringement action. Registration is not something you skip. In the United States, a registered copyright was recently made mandatory before you can make a legal action for infringement. And it can take months to process. 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 or USB thumb drive: don’t try any other sort of pseudo copyright method. You need a registered copyright; it costs $35; and timeframes matter, so go do it.

3. Assemble your evidence.

In steps one 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.

4. 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 been a worldwide hit record, sure, get going. If not, discuss with your attorney the idea that it might be worth letting this infringing song earn. Maybe let it be a hit! Maybe let it make a pile of money! Why? Because if someone stole your song, you’re possibly going to be seeking damages of the ‘non-statutory’ type, which is related to the percentage of the song’s profits that are attributable to your copyrighted material. 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 provide an analysis not only of whether or not your song was likely stolen (more on that later) but exactly how much of the infringing song is attributable to yours. That analysis informs the way you and your lawyer calculate those damages.

5. Find a musicologist.

Maybe this should be step two, because it’s probably going to be the first thing a lawyer asks you — “Has a musicologist looked at this for you yet?” Lawyers aren’t music experts. A musicologist is a music expert who is also familiar with intellectual property law.

A musicologist will analyze both songs and evaluate the similarities and the significance of those similarities. He will help you and your lawyer know if you have a case. If you DO have a case, a musicologist will also work to calculate the above-mentioned degree of infringement. And that will help determine the damages you’re potentially due. And very importantly he’ll foresee the opposing arguments and challenges you might face along the way.

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Also I’m fairly active on Twitter.

Written by Brian McBrearty