Law Office of Alan Korn

Specializing in art, entertainment, intellectual property and business law.

This is the article #3 in a series of articles on legal issues and the music business. Of course, the usual caveats apply. Remember this column is primarily educational and does not purport to constitute legal advice. Also remember that this is the Internet, and the legal issues discussed here may vary dramatically from state to state, and from one country to another. If you have legal concerns or need legal advice, be sure to consult with an attorney who is licensed to practice in your jurisdiction.

COPYRIGHT INFRINGEMENT

Welcome back to the Fine Print. This installment focuses on how somebody’s copyright in a piece of music can be infringed.

1. HOW IS A COPYRIGHT INFRINGED?

Copyright infringement occurs when one of a copyright owner’s exclusive rights is violated. A copyright is violated when someone copies, distributes, performs or displays all or part of a copyright work without the permission of the copyright owner. For instance, a copyright in a musical work may be infringed through the sale of “pirate” or bootleg recordings, by the use of digital “samples” without permission, or by the unpermissive use of a musical work in a video or motion picture. (Fortunately, the issue of home recording and copyright infringement was addressed in 1992 when Congress passed the Audio Home Recording Act, permitting consumers to make home recordings of prerecorded music for noncommercial uses).

Copyright infringement is subject to civil sanctions of up to $30,000 per infringing act, or up to $150,000 per each willful infringement. Because copyright infringement is a “strict liability” violation, it is possible to be liable even if you had no knowledge that an infringement occurred. Infringers may also be subject to criminal prosecution if the infringement is found to be “willful” and for purposes of commercial advantage or private financial gain.

2. WHAT IS THE STATUTE OF LIMITATIONS FOR COPYRIGHT INFRINGEMENT

The statute of limitations for copyright infringement is three years for both civil and criminal lawsuits. This means that if somebody infringes your copyright, you must bring a lawsuit within three years of the infringing act. If your bring a suit more than three years after the infringement began, you may only be permitted to recover three years worth of damages.

3. HOW IS INFRINGEMENT PROVED IN A COURT OF LAW?

To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work.

Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law.

4. HOW DOES ONE SONG “INFRINGE" ANOTHER?

Proving access to a popular song is usually not difficult in copyright litigation. If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration.

One of the more famous U.S music infringement cases involved ex-Beatle George Harrison, who was found by a jury to have “unconsciously” copied the Shirelle’s composition “He’s So Fine” in his 1971 hit “My Sweet Lord.” Although George Harrison’s hit was found to be strikingly similar to the Shirelle’s song, it is even possible to infringe another song if only just a few notes are “borrowed.” Because the most memorable part of a song may be quite brief, infringement of a musical composition may be found even where only a small portion of a song was copied.

5. IS IT OK TO USE A SMALL PIECE OF SOMEBODY ELSE’S MUSIC IN MY SONG?

The obvious answer is yes, if you first obtain permission from the copyright owner. Obtaining permission first is usually the best (though not always the easiest) solution.

There is no simple rule concerning how much of a work may be taken before it rises to the level of infringement. Obviously, the more a work is copied, the easier it is to show substantial similarity. Ultimately the test for infringement turns on the issue of quality, rather than quantity. For instance, in determining whether one song infringes on another, it is common for courts to look to whether the “heart” of the song was taken. The heart of a song may be a memorable melody, or an identifiable 2-chord guitar riff or just a few words taken from the chorus. As a result, there is NO truth to the rumor that sampling less than 4 bars is OK.

6. WHAT DOES ALL THIS MEAN IN THE REAL WORLD?

Even copyright scholar Melville Nimmer has observed that it is hard to apply copyright infringement analysis to popular music because almost all popular compositions bear some similarity to prior works. A successful pop song typically balances elements of familiarity and novelty, and pop songwriters frequently pay tribute to their peers and predecessors via allusion, pastiche and mimicry, making it difficult to determine exactly which elements in any given pop song are original. Also, most popular music derives from a variety of musical traditions. Rock and roll “borrows” extensively from black music, country music, folk and Tin Pan Alley. Rap music borrows heavily from funk, soul, dissonant jazz and the avant garde. Add to this the strong tradition of answer songs and parodies in the popular charts, with artists developing specific themes, ideas and melody patterns taken from earlier hit recordings and it’s easy to see why copyright law has been criticized as too simplistic.

Because digital samplers can appropriate infinitesimally small “bits” of information, determining what constitutes an infringing use may prove extremely difficult. Nevertheless, it is important to remember that it takes very little copying to infringe a copyrighted work. This is especially significant in an age when everybody can now afford to sample and manipulate pre-existing copyrighted material. The issue of digital sampling is something I hope to discuss at greater length in a future episode of The Fine Print. In the meantime, if it sounds like copyright law can be overly protective of artists rights at times, well, yeah, that’s the point of copyright. Copyright law may be ill-equipped at dealing with our current digital age, but nevertheless it is the law. Fortunately, copyright law also permits the limited use of copyrighted material in specific instances. This will be addressed in the next column on “fair use” and other defenses to copyright infringement.

Alan Korn
Law Office of Alan Korn
1840 Woolsey Street
Berkeley, CA 94703
Ph: (510) 548-7300
Fax: (510) 284-3750
email: alan [at] alankorn [dot] com
www.alankorn.com