Question:
I
wrote a song in 1983 and copyrighted it by sending it to myself
by registered mail. I also sent the song to a few publishers. In
1985, a big name star had a radio hit that always sounded really
close to my song. Recently, I compared the hit's lyrics from a songbook
with my song, and I'm convinced the hit was taken from my song.
The hit has almost the exact same name, the same specific theme,
and a similar chorus and rhyme scheme. What should I do?
Answer:
Oh
boy. This area of the law is called infringement, commonly known
as "someone ripped off my song". While each case really depends
upon the particular facts, here is a bit of an outline of a copyright
infringement case. An infringement plaintiff has really only two
things to prove: 1) ownership, 2) copying. But behind these seemingly
simple concept are (surprise!) some fairly complicated legal knots.
Consult a competent attorney to untangle them.
As
to "ownership", you've got to show original, copyrightable material,
citizenship status, and compliance with statutory formalities. (Let
me make one thing really clear: sending the song to yourself, registering
a song, etc.. is NOT what gives you a copyright, although an unopened
certified letter is excellent proof of the date of creation. As
of 1978 in the US, simply FIXING your creation in a tangible medium
grants you a copyright. What we're talking about here is ENFORCING
the copyright.) As to citizen status, non-U.S. authors can sue in
U.S. courts, but under more restrictive circumstances than U.S.
authors. I leave that analysis for another day.
As
to (actionable) "copying", there are really two ways to prove it
(since not many plaintiffs are eyewitnesses to the copying). First,
you can prove that the defendant had access to your work, and his
work bears a substantial similarity to yours. "Access" is a legal
term. It used to be that simply proving that you mailed your song
to a publisher would suffice to prove access. But the courts have
moved away from that standard, and now you have to show a connection
between the recipient and the writer/artist who allegedly did the
infringing. You can also prove access by showing your work was widely
disseminated. "Substantial similarity" involves a musical analysis
of the song--you take out the nonprotectable elements (like common
pop/rock devices) and compare the rest. In many courts, it can also
involve a looser "smell" (hear?) test. If you can't prove access,
the second way you can establish copying is by proving "striking
similarity", a really high standard (which in turn can be rebutted
by defendant proof of independent creation).
One
last point: why did you wait 16 years to bring this up? The statute
of limitations for copyright infringement is 3 years. Copyright
enforcement demands diligence. As ongoing infringement is a redressable
"continuing wrong", you are not totally out of luck, but your damages
will probably be limited by waiting so long to enforce your rights.
And speaking of damages, that issue is for another column.
Lessons:
1.
If you intend to make money from your copyrights, register them
and police their use.
2.
If you get wind of a potential infringement, act quickly.
3.
For publishers, labels, artists, etc., have a clear policy in place
for dealing with unsolicited submissions. Prepare a form rejection
letter that states the policy and that the material was destroyed
without consideration. Also, it's a good idea to document the creative
process, which will support an "independent creation" rebuttable
to a "striking similarity" claim.
