May 25, 2017 Musicology, Opinion 4 Comments

“Hey, that’s my song!”

It’s not a good feeling. You might be listening to the radio or to a Spotify playlist, or you’re at the mall, or you’re watching a tv show or a commercial and you hear music that sounds just like something that’s yours. What do you do?

Let’s start with what you might want to avoid doing. Don’t get on the phone to the artist, or their label, or the TV show. And don’t jump on Facebook, Instagram, or Twitter and tell the world. Not yet anyway. Instead, you’re going to take a deep breath and move through these five basic steps.

1. Find a good lawyer.

Yes, you lawyer up! Instead of contacting the infringer on your own, find 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 by the way does not provide legal advice. I am NOT a laywer. My expertise and opinions are musical, not legal. Nobody is a substitute for your own personal lawyer. That’s step one.

2. Get your own copyright properly registered.

Despite what you may have heard, this is pretty much 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, registered copyright is necessary before you can take legal action for infringement. And registration can take months to process.

And don’t put too much stake in any of the workaround ideas you may have heard. Don’t just type a “©” beside the title; don’t mail yourself a copy on CD or USB thumb drive. No other sort of pseudo copyright method are as good. You need a registered copyright; it costs $35; and timeframes matter, so go do it.

3. Assemble your evidence.

In step one and again in step five you’ll enlist the help of professionals who will need some facts and evidence to do their jobs. Begin to collect and organize the materials that show you wrote your song — evidence of when you wrote it; any software files from the creation of the song, and 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; and also any evidence that would show how the infringer might have heard your song.

4. Consider, after discussion with your attorney, taking a pause.

Are we talking about a new release by a major artist? You might be itching to go go go. I understand; sure, you’re gonna sue them into oblivion! But has the song made any money? Is there anything to sue against?

If it’s already been a worldwide hit record, that’s one thing. But 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.

Again, not a lawyer. You should have an attorney helping you make these kinds of decisions.

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 forensic musicologist is a music expert who is also familiar with copyright law and knows a lot about music production as well.

A forensic musicologist will 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 may be better explained as coincidence. If however, the analysis does lead to an inference of copying, the next steps may be a musicology report and a determination of the degree and extent of infringement which will help calculate the damages you’re potentially due.

I welcome questions and comments, and I can be reached through this contact form, by email at musicologize@gmail.com, or if you’re ready to talk, you can put yourself on my calendar and we’ll have an introductory phone call. 

 

Written by Brian McBrearty