Legal: How Far Does Copyright Actually/Practically Protect A Work?

Discussion in 'Recording/Live Sound' started by Blanket Jackson, Feb 22, 2016.

  1. Blanket Jackson

    Blanket Jackson is Tio's favorite Silver Supporting Member

    Messages:
    15,331
    Joined:
    Sep 1, 2009
    Location:
    Brooklyn NY
    So let's say I like The Rover (Led Zep song), and I inadvertently (assume coincidence, no malice intent) take the chord progression and arrangement but change the melody and the lyrics so that the song becomes a brand new song. Is it really a brand new song, or a stolen idea? From what I've read on the interwebs the melody and lyrics are the key factor in determining infringement ... but then there is the example of Blurred Lines, where arrangement factored into the arguments ... I guess I am confused ....
    • What makes a song a copyright infringement of another song?
    • Assuming that my song is the one being copied, does a copyright even matter in this day and age? Or does it only "matter" if the new piece starts making money? How far does the copyright actually protect?
    • Do I need a lawyer to review / validate my application (e.g. validity of claim, and Form SR or Form PA) before I submit it to copyright.gov? Is there a review board?
    • If I do not copyright my original music, and assuming it is actually good and not just that I think its good, and I post it on Soundcloud (for instance) - am I in danger of having the song stolen outright? What protection do I actually have - with or without copyright?
    I'm especially interested in what the TGP members of the bar have to say, as well as what our singer songwriters are doing in practice.

    Thanks for all of your help with this guys. This is not academic (besides the first example) since I am at the stage myself.
     
    Last edited: Feb 22, 2016
  2. amphog

    amphog Member

    Messages:
    4,000
    Joined:
    Nov 28, 2009
    Location:
    NY
    The person with the best lawyer wins.
     
    Blanket Jackson likes this.
  3. dconeill

    dconeill Member

    Messages:
    1,667
    Joined:
    Dec 9, 2006
    All "copyright" does is to establish a date on which you have registered a particular work as having been originated by you. The copyright office provides an official repository of such dates. Enforcement is up to the copyright holder - e.g., if you have a registered copyright to a work and you find that someone else is claiming authorship, you can bring suit against them and use your registered copyright as evidence.

    AFAIK there are no government copyright police who do this monitoring for you - all they do is to register the copyright as potential evidence.

    Of course there are many details not listed here. You should consult a copyright lawyer.
     
    Last edited: Feb 22, 2016
    Blanket Jackson likes this.
  4. LSchefman

    LSchefman Member

    Messages:
    13,438
    Joined:
    Jan 4, 2002
    I've litigated copyright matters in the past, both before and after going into the music business. So here's your answer:

    1. The question of whether a copyright is infringed upon is not answered by statute, and it's not set in stone in case law; it is instead a fact question for the jury (or for the judge if it's not a jury trial). There are no set musical rules as to what constitutes an infringement. If a jury might find, in your example, that the arrangement and chords were in fact infringing on the original, you certainly have a legal issue that you should discuss with an attorney, who would probably employ a musicologist to evaluate the song before advising you.

    2. Copyright matters. The loser in a copyright case pays damages, that can be actual losses, or statutory amounts, and the loser also pays the winner's legal fees. In copyright cases that are litigated fully, you'd better have a strong case, or you will be writing a six figure check to the other side on top of any damage award.

    3. There is no review board, and you don't need a lawyer to register your copyright. In fact, in order to go into federal court to enforce your copyright, a registration certificate is required. Bear in mind though, that there are penalties for registering a copyright that in fact belongs to someone else, or that a court might find belongs to someone else.

    4. You own your copyright once it is "affixed to a tangible medium" such as a recording. This is the case since the US ratified the Berne Convention in 1988. But you can't enforce your copyright without registering it, and in fact, the first person to copyright a song is presumed as a matter of law to own the copyright. Thus the burden of proof shifts to the second person registering the tune. So if someone were to, say, steal your Soundcloud song, and register the copyright first, you would have to prove that you were in fact the creator of the work, instead of the other person having to prove it. Burden of proof means that the balance tips against you to start with if the other person registers first.

    Without registering the copyright, you have an uphill battle and reduce your chances of enforcing your copyright. Register the copyright and you will be better protected. Though you should also be aware that collecting a copyright judgment is difficult if the defendant doesn't have a lot of money.

    Since I am not familiar with you, or your song, and we have not discussed anything at all beyond my reading of your post, you are not my client, and this is not legal advice. I'm not interested in doing any legal work, so the purpose of this post is not to give you legal advice, and it is not to become your lawyer.

    The purpose of this post is solely to acquaint you with some of the issues that arise in copyright law. You will have to discuss this with your own lawyer. Find someone with the necessary expertise. Also, this is as far as I'm willing to take the discussion, please respect that and don't ask for further advice via PM.
     
    Teal_66 and Blanket Jackson like this.
  5. Blanket Jackson

    Blanket Jackson is Tio's favorite Silver Supporting Member

    Messages:
    15,331
    Joined:
    Sep 1, 2009
    Location:
    Brooklyn NY
    Thank you SOOOO much for this comprehensive and very informative post. Really appreciate you taking the time to give such clear insights and reflections and this. I both understand and agree to the boundries you have stated to the post. You have been more than helpful.
     
  6. Blanket Jackson

    Blanket Jackson is Tio's favorite Silver Supporting Member

    Messages:
    15,331
    Joined:
    Sep 1, 2009
    Location:
    Brooklyn NY
    Awesome, thanks so much man. Great info.
     
  7. LSchefman

    LSchefman Member

    Messages:
    13,438
    Joined:
    Jan 4, 2002
    You're welcome! I like sharing the little bits and pieces of info I have.
     
    Blanket Jackson likes this.
  8. Multicellular

    Multicellular Member

    Messages:
    7,886
    Joined:
    May 29, 2013
    Location:
    Washington, D.C.
    Helpful post.

    I havent litigated anything re copyright, but as a lawyer I have done contracts regarding copyright for music and print media and this seems spot on.
     
    Blanket Jackson likes this.
  9. Motterpaul

    Motterpaul Tone is in the Ears

    Messages:
    12,091
    Joined:
    Dec 16, 2010
    Location:
    Encinitas, SoCal
    Sorry to be a killjoy but this is the wrong forum for this question. i only say this because you would get more answers in the Sound Lounge, etc. (I just saw the one from a lawyer above and that is good advice)

    Also, i am not a copyright lawyer, but i have retained one before, and I can add this; if all you have is "common law' copyrights you can only get the damages you can prove (what the other party earned from your work), but if you pre-register a work and someone infringes you can get automatic damages worth far far more - over $100k per violation, assuming you prove your case. Hence, despite common "wisdom' to the contrary, common law copyright is not worth a hill of beans.
     
    Blanket Jackson likes this.
  10. Blanket Jackson

    Blanket Jackson is Tio's favorite Silver Supporting Member

    Messages:
    15,331
    Joined:
    Sep 1, 2009
    Location:
    Brooklyn NY
    This is all tremendous advice and insight. Thanks to all of you for these posts. This is exactly what I needed, and much more than I expected.
     

Share This Page

  1. This site uses cookies to help personalise content, tailor your experience and to keep you logged in if you register.
    By continuing to use this site, you are consenting to our use of cookies.
    Dismiss Notice