Most bands do not ask me this question like I have phrased it above. Instead, they ask, "what if someone rips off my material"? The answer is, they infringe your copyright. You get a copyright the minute you put your song on tape or write it down on paper. You do not get a copyright by sending your song to the Copyright Office in Washington D.C.; doing this registers your copyright. I will explain the benefits of registering your copyright shortly, but you do not need to do this to prevent someone from ripping off your songs.

In order to prove that someone infringed your copyright, you must show that you own the copyright. Second, you must prove that the infringer had access to you song. The infringer, on the other hand, will try to show that he did not have access to your song. If your song was a hit across the country and was on the radio a lot, it should be easy to prove the infringer could have heard it. However, if you pressed 500 copies of your demo and sold it at shows, it may be hard to prove someone 2000 miles away had access to your song. The stronger showing of access, the greater the chance of proving infringement.

After you establish access, you must prove that the infringer's song is "substantially similar" to yours. This legal definition is purposely vague because it is up to a judge or jury to determine if the song is substantially similar. If a band copies your entire song, note for note, it should not be hard to convince someone of the substantial similarity between the two. However, even a copied drum beat can be infringement, if you prove it is substantially similar.

Once you prove access and substantial similarity, the infringer can present defenses. First, he can argue that his song is an independent creation. Going back to the copied drum beat, it is conceivable that the infringer thought it up all by himself and it is only a coincidence that your song has the same drum beat. After all, there are only a limited number of drum beats. This would be proof of independent creation. In fact, it is theoretically possible that two people could create the same song with neither knowing of the other's work. Once again, it is not infringement unless you prove they copied your song.

It is important to realize that you do not have to prove that the infringer stole your song on purpose. It can be infringement even if the copying was done subconsciously. The copyright owner has to prove a lot of things, but intent is not one of them.

If you prove someone infringed your copyright, then everyone who commercially exploits the song is also an infringer. Therefore, a record company who puts out the song, even though they had no reason to realize it was infringing your copyright, it is still liable. This re-emphasizes the fact that you do not have to prove someone deliberately infringed your copyright.

Now you have proved ownership, access and substantial similarity and countered all the defenses and proved infringement: What do you get? The Copyright Act provides various remedies. First, you are entitled to an injunction, which is a court order forbidding the infringers from distributing any more copies of the infringing work. Second, you are entitled to actual damages. Actual damages are what harm you suffered from the infringement. These damages are usually next to nothing unless you prove that the value of your song has been diminished by the infringer's version. Perhaps the most significant remedy is the award of profits. You are entitled to the profits the infringer made off of your song. If the infringing song made a lot of money, you are entitled to the portion attributable to your creation. This gets complicated and is far beyond the scope of a web page.

You get the above remedies whether you register your copyright as soon as it is created or not. So why should you register your copyright immediately? First, you need to register before you can sue for infringement anyway, but there are two other reasons to register your copyright. Registering your copyright gives you two additional remedies which are unavailable to those who do not register. First, you are entitled to attorney's fees. These can be very important because otherwise, you will have to pay your attorney. With the prospect of attorney's fees at the end of the case, it will be easier to convince a lawyer to take your case. Finally, you are entitled to statutory damages. Since the damages discussed above can be difficult to prove, the judge can award you statutory damages ranging from $250 to $10,000 and up to $50,000 if the infringement is intentional.

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