May 25, 2017 Musicology, Opinion 4 Comments

“Hey, that’s my song! They stole my music.”

It’s a terrible feeling, believing that your music has been stolen. I often hear the story: “I was listening to the radio, and I had to pull off the road!” Okay, maybe we don’t listen to a lot of radio anymore; Spotify playlist or you’re at the mall, or you’re watching a tv show or a commercial, at any rate, you hear music that sounds just like something that’s yours, stolen copied music. What do you do?

Here are five first steps to get you going in the right direction, beginning with what you might want to avoid doing. I would not suggest getting on the phone to the artist, or their label. And I wouldn’t jump on Facebook, YouTube, or Twitter and complain to the world, not yet. Instead, take a deep breath and move through these five basic steps.

1. Find a good lawyer.

Lawyer up! Instead of contacting the infringer on your own, find a good attorney. And perhaps not just any law office 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 lawyer. My expertise and opinions are musical, not legal. There is no substitute for your own personal lawyer. There’s step one.

2. Get your own copyright properly registered.

Despite what you may have heard, copyright registration is necessary. 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 the rights to your work belonged to you, the author, at the moment you put it into fixed form, good luck with that in an actual infringement action. Registration is not something you skip. In the United States, a registered copyright is necessary before you can take legal action for infringement. And registration can take a while to process.

And please don’t put too much stake in any of the workaround ideas you may have heard. For example, don’t rely on simply typing a “©” beside the title; don’t mail yourself a copy. Pseudo copyright hacks are insufficient. Get the registered copyright; it costs $35; and timeframes matter, so go do it. That’s step two.

3. Assemble your evidence.

In step one and step five you’ll enlist the help of professionals who will need some facts and evidence to do their jobs. You can begin to collect and organize the materials that prove you wrote your song and provide evidence of when you wrote it. This would include most importantly the recording of the version that you published or distributed, which hopefully matches the deposit copy you sent to the Copyright Office when you registered the copyright; any software files from the creation of the song, and also any evidence of how the infringer would have heard your song.

4. Consider, with your attorney, how damages might work.

You might be itching to go get them. I understand; we’re angry. We’re gonna sue them into oblivion! But you have an attorney for good reasons. Be thoughtful.

You’re possibly going to be seeking damages of the ‘non-statutory’ type, which is related to the song’s profits and the percentage of those profits that are attributable to your copyrighted material. In other words, if the song were a 100% ripoff, you could be entitled to all the profits. If they stole just the chorus, you might be entitled to that portion. This is where musicology comes in. A musicologist can provide an analysis of whether or not your song was likely stolen (more on that later) and how much of the infringing song is attributable to yours. That analysis can inform the way you and your lawyer calculate and argue those damages.

Again, not a lawyer. You should have an attorney helping you make these kinds of decisions. And step five is…

5. Find a musicologist.

It’s probably going to be one of the very first things a lawyer asks you — “Has a musicologist looked at this for you yet?” Lawyers aren’t music experts generally. A forensic musicologist is a music expert who is also familiar with copyright law and should know a lot about music production as well.

A forensic musicologist can analyze both songs, explain and evaluate the similarities, and importantly the significance of those similarities. This will help you and your lawyer better understand the strengths and weaknesses of a potential infringement claim. Much of the time, what one hears as copying is better explained as coincidence and isn’t actually infringement. If, however, the analysis does lead a musicologist to an inference of copying, the next steps may be a musicology report (a more involved analysis and exploration, including a lot of prior art research) and a determination of the degree and extent of infringement which will help calculate the damages you’re potentially due.

Questions? Ask! Happy to answer.

You could set it up right now. This new Calendly form lets you put yourself on my schedule for a quick introductory phone call. I can also be reached through the Musicologize contact form, or by phone at (212) 217-9512.

Written by Brian McBrearty