#2503 - tepples - Wed Feb 05, 2003 2:00 am
I understand that a lawyer would be the best to answer the following questions, but I'd like to hear what your attorneys have told you so that I can know the playing field before I spend hard-earned money on a consultation with mine.
Given:
Under copyright laws in effect in the United States of America, a person who 1. has had access to a copyrighted work 'Foo', 2. creates an original work that is "substantially similar" to 'Foo', and 3. does not qualify under "fair use" exemptions, infringes the copyright in 'Foo' (Arnstein v. Porter).
Though establishing access requires similarity (Ferguson v. NBC), courts have ruled that hearing a song on the radio even once constitutes access. Because of the ubiquity of radio in modern American society, the major music publishers use this as a tool to taint every hearing person with access to every published and performed song so that the music publishers have a better chance at using their libraries of copyrighted musical works as weapons in court.
There exist only a finite number of distinct melodic hooks of a given length.
Courts have ruled that use of a half-dozen or so notes of a melodic hook plus chord progression from another musical work constitutes substantial similarity. It takes quite a bit more than that, plus testimony from an expert witness, to infer access by establishing circumstantial evidence of "striking similarity" that precludes any possibility of coincidence or derivation from a common source (Selle v. Gibb).
Courts have ruled that the fact that an author may have been unaware that he was copying an existing work is no defense to copyright infringement (Bright Tunes Music v. Harrisongs Music).
To learn about copyright case law as it relates to musical works, please read this site hosted by Columbia University:
http://library.law.columbia.edu/music_plagiarism/
A successful defense in a civil lawsuit, especially against a multinational conglomerate corporation, costs more in attorney's fees than most individuals have in the bank. This lets big companies SLAPP the little fellow around.
Statutory damages assessed against an infringer of copyright can reach as high as $150,000 even if actual damages are zero.
Solve:
How can a composer who lives in the United States independently publish a musical work, or a work containing a musical work, without risking losing everything he owns to a music publisher that may come out of the woodwork?
_________________
-- Where is he?
-- Who?
-- You know, the human.
-- I think he moved to Tilwick.
Given:
Under copyright laws in effect in the United States of America, a person who 1. has had access to a copyrighted work 'Foo', 2. creates an original work that is "substantially similar" to 'Foo', and 3. does not qualify under "fair use" exemptions, infringes the copyright in 'Foo' (Arnstein v. Porter).
Though establishing access requires similarity (Ferguson v. NBC), courts have ruled that hearing a song on the radio even once constitutes access. Because of the ubiquity of radio in modern American society, the major music publishers use this as a tool to taint every hearing person with access to every published and performed song so that the music publishers have a better chance at using their libraries of copyrighted musical works as weapons in court.
There exist only a finite number of distinct melodic hooks of a given length.
Courts have ruled that use of a half-dozen or so notes of a melodic hook plus chord progression from another musical work constitutes substantial similarity. It takes quite a bit more than that, plus testimony from an expert witness, to infer access by establishing circumstantial evidence of "striking similarity" that precludes any possibility of coincidence or derivation from a common source (Selle v. Gibb).
Courts have ruled that the fact that an author may have been unaware that he was copying an existing work is no defense to copyright infringement (Bright Tunes Music v. Harrisongs Music).
To learn about copyright case law as it relates to musical works, please read this site hosted by Columbia University:
http://library.law.columbia.edu/music_plagiarism/
A successful defense in a civil lawsuit, especially against a multinational conglomerate corporation, costs more in attorney's fees than most individuals have in the bank. This lets big companies SLAPP the little fellow around.
Statutory damages assessed against an infringer of copyright can reach as high as $150,000 even if actual damages are zero.
Solve:
How can a composer who lives in the United States independently publish a musical work, or a work containing a musical work, without risking losing everything he owns to a music publisher that may come out of the woodwork?
_________________
-- Where is he?
-- Who?
-- You know, the human.
-- I think he moved to Tilwick.