“Hey, that’s my song; they stole my song!”
It’s not a good feeling. You might be listening to your radio or to a Spotify playlist, or perhaps you’re watching a tv show or a commercial and you hear music that sounds just like something of your own. Maybe 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 their label, or the TV show. And don’t jump on Facebook, Insta, or Twitter and tell the world. 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, get 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 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.
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 was recently made mandatory before you can take legal action for infringement. And registration can take months to process.
And 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 on 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 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. So 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. Get together the files of the infringing song as well, and keep track of the song’s distribution and performances.
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, sure, get going. 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.
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 and should know a lot about music production as well.
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. (Most of the time, what one hears as plagiarism is better explained as coincidence.) 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.
I welcome questions and comments, and I can be reached through this contact form or by email at email@example.com.
Also I’m fairly active on Twitter.