>> [MUSIC] What happens if someone infringes on your copyright,
either in your sound recording or your composition?
In other words, they use portions of your prior copyrighted work.
Well, if you think that they've infringed on your rights,
you can certainly send a notice and file a claim.
At some point, if you have a US Copyright registration,
you can sue them in federal court.
However, I'm going to let you know that
suing people for copyright infringement
and proving the case isn't an easy thing to do.
Because if you go to court,
you're going to have musicologists
that are going to testify on both sides
and they're really going to notate each song
and really compare to see how close that song comes or that sound recording comes to the other
and that can be a very difficult process.
As a matter of fact, most copyright claims are
usually settled before there's a decision in the case.
A lot of people also ask me, well,
I've heard about this rule that if you only use
four bars of somebody else's song or sound recording,
then it's not considered copyright infringement.
False. It could even be three notes.
The NBC television network used to have
a three-note sound logo that they used to play at the top of every hour.
Now I can't repeat those notes here because I don't want to infringe on their copyright.
But if I did or anybody else used those three notes,
the NBC network could sue them for copyright infringement.
If you feel that your copyrights have been infringed
upon and you have US Copyright registrations,
you're in a position to sue in the US federal court system.
Once you get to the case and get to the trial level,
there are three elements of proof and this
is the reason why I say that proving
copyright infringement is really no joke.
It isn't as easy as everyone thinks.
Many times people will hear songs and they will say,
that sounds just like this song.
That person should sue that person
for copyright infringement and they fail to recognize
that there are three elements that you have to prove
and it might be difficult overcoming some of those hurdles.
Let's talk about the first element of proof.
One, you have to prove that you actually have a US Copyright registration.
As I mentioned earlier,
you have to bring that copyright registration to court.
Make sure that you carefully catalog your copyright registrations.
Two, you have to prove access.
You have to prove that the person that infringed on
your work had access to your copyrighted work.
They heard that work before and that's the thing,
that's the reason why they created their work incorporating your work.
Access isn't that easy of a thing to prove.
Certainly if you went backstage with an artist and
you played them a song and there were other people in the room who
could testify that the artist heard that song on that particular date and then
three months later the artist comes out with a song that sounds just like your song,
but they didn't get permission from you.
That's a pretty easy case of proving access.
However, it usually doesn't happen that way.
You don't have to have just direct evidence of access, however.
In some cases,
you can prove access through circumstantial evidence.
In other words, you can prove that
an artist that infringed upon your work
had listened to the radio stations
that your song had been played on and therefore,
must have had access to your song.
Access isn't as easy as it sounds to prove.
I had a client that came to me and said, "Mr. Kellogg,
Stevie Wonder stole my song."
I said, well, okay,
but knowing that I had to prove access.
I said, but how did Stevie Wonder hear your song
before creating this other song that you say infringed on your song?
He said, "Well, I sent it to Motown.
I sent it out to California and I sent it to Detroit."
By that time I knew that record labels and publishing companies had stopped taking
unsolicited material and this is the reason why they stopped taking unsolicited material.
By that I mean, they will only take material from people that they know,
talent agents, or lawyers that they really have good relationships with.
You aren't going to find the situation that just
because a song you hear on the radio sounds something like your song,
then there's copyright infringement.
No, you really have to prove that the person that you claimed infringed on your work had
prior access to your work and developed their work based on your work.
I turned that case down.
I told the potential client,
I can't handle that case.
I don't think we're going to be able to prove access and if you can't prove access,
you can't even get to the third element of proving copyright infringement.
That potential client went to another lawyer who decided to take on the case.
The lawyer in this case,
upon filing the lawsuit,
decided to hold a press conference.
All of the TV stations in this particular town came out
to attend the press conference because they received
a press release that a local resident was filing a case against
Stevie Wonder and Stevie Wonder had stolen this local resident's song.
At the press conference the lawyer said, "Well,
Stevie Wonder stole my client's song
and we're going to make sure
that my client's rights are really enforced
and Stevie Wonder won't get away with this case."
The case eventually went to trial.
They couldn't prove access and they lost the case.
As I said before,
the judge in a copyright infringement case can order
the losing party to pay the winning party's attorney's fees.
In this case, the judge did indeed order that potential client
to pay Stevie Wonder's attorney's fees in the amount of $240,000.
As I indicated before,
copyright infringement cases aren't as easy to prove as a lot of people think.
You have to be very careful because you could
be ordered to pay the attorney's fees should you lose the case.
The elements to prove a copyright infringement case.
First, you have to have the copyright registration.
Second, you have to prove access and the third element is substantial similarity.
You have to prove that your work
was infringed upon and the other person that created a work
that infringed upon yours is substantially similar to your copyrighted work.
Substantial similarity is determined on a case-by-case basis and as I alluded to earlier,
each party is going to have their expert,
usually a musicologist,
that's either going to try to prove that the song is similar
or that it isn't similar.
That's going to really be determined by either the judge or the jury.
There is no set formula to determine substantial similarity.
It's really going to come down to the evidence
that's presented by both the parties and the determination
that's made either by the judge or the jury.
However, if the two works are strikingly similar where
anyone can hear that the music is really the same,
then you don't even have to prove
access in order to proceed with a copyright infringement suit.
I remember having one client's song used.
I felt a certain portion of their song used in another popular artist's song and
I raised this issue to
the publishing company that administered the songs on behalf of my client.
To me, it really sounded like copyright infringement.
Well, the publisher was smart.
The publisher hired a musicologist to actually notate the rhythms,
the melodies, and the lyrics to determine whether or not it was enough to move forward,
whether or not it was substantially similar or not.
Although I disagreed with the publisher,
I had to go along with their decision because they are experts in
that particular area of determining whether or not
it's worth going forward with a copyright infringement claim.
[MUSIC]