“Hey, that’s my song! They stole my music.”
It’s a terrible feeling to believe that your music has been stolen. I hear, “I was listening to the radio in the car, and I had to pull off the road!” Okay, maybe we don’t listen to a lot of radio anymore; instead, it’s Spotify, or you’re in a store, or you’re watching a tv show, but you hear music that sounds just like something that’s yours, stolen and copied. What do you do?
These five first steps will get you going in the right direction, but let me preface them with a quick note on what you might want to avoid doing at this stage. I would not, for example, suggest getting on the phone to the artist or their label. And I probably wouldn’t jump on Facebook, YouTube, or Twitter and complain to the world. Instead, I recommend you take a deep breath and consider these five steps.
1. Find a good musicologist.
This is first. It’s going to be the first thing a lawyer will ask — “Has a musicologist looked at this for you yet?” Lawyers aren’t music experts generally. A good forensic musicologist is a music expert who is also familiar with copyright law. Their job is to help you and any lawyer you bring in understand the strengths and weaknesses of a potential infringement claim. A forensic musicologist can analyze both songs, explain and evaluate the similarities, and importantly the significance of those similarities. Much of the time, what one hears as copying is better explained as a coincidence. 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 prior art research) and a determination of the degree and extent of infringement which will help calculate the damages you’re potentially due.
- For attorneys navigating this process, see retaining a forensic musicologist.
- Not sure where to begin? I’m Brian McBrearty, the forensic musicologist behind Musicologize, call (212) 217-9512.
2. Assemble your evidence.
In step one and step four you enlist the help of professionals who will need some facts and evidence to do their jobs. You can begin to collect materials that prove you wrote your song and when you wrote it. This would include, importantly, the recording you published or distributed (which hopefully matches the deposit copy you sent the Copyright Office when you registered — you registered it, right? See step three), any software files from its creation, and any evidence of how the infringer would have heard it.
3. 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 or mailing yourself a copy to get a stamped post date. Pseudo-copyright hacks are insufficient. Get the registered copyright; it costs $35; and timeframes matter, so go do it. That’s step three.
4. Find a good lawyer.
With a musicologist’s read in hand, now find a good attorney — ideally one who specializes in entertainment and intellectual property law, not just any office down the street. Don’t contact the infringer yourself. Your lawyer builds the legal strategy around the musicology findings; that’s the order that saves you time and money.
Musicologize cannot and does not provide legal advice. I am NOT a lawyer — my expertise and opinions are musical, not legal. A good attorney is essential, which is exactly why a musicologist comes first: it tells you whether there’s a case worth bringing to one.
5. Consider, with your attorney, how damages might work.
You might be itching to go get them. I understand; we’re very angry over here. 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 another area where musicology comes in. A musicologist can provide an analysis of whether or not your song was likely stolen (see step one) 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.
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.
