Music Copyright Infringement – Fair Use – Filing Procedure

What is considered music copyright infringement?

Music copyright infringement is an act of violating any of a copyright owner's exclusive rights granted by the federal Copyright Act – 17 USCA §§ 106, 602 – that is to infringe copyright owner's several exclusive rights, for example the rights (1) to reproduce the work, (2) to prepare derivative works based on the work, (3) to distribute copies of the work, (4) to perform the work publicly, (5) to display the work publicly, (6) for sound recordings, to perform the work publicly, and/or (7) to import into the United States copies acquired elsewhere.

Famous music copyright infringements cases

Music industry is replete with cases claiming that famous songwriters, media, and musicians may find themselves in hot waters because they infringe on copyright of other less popular artists. Indeed, infringing copyright laws and/or infringements are not uncommon.

Just the year 2020 produced such decisions as:

• Michael Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (discussing Led Zeppelin's iconic "Stairway to Heaven" song); 
• Marcus Gray v. Katy Perry, 2020 WL 1275221 (C.D. Cal. Mar. 16, 2020) (a lawsuit deciding the allegation that an 8-note ostinato from Perry's song “Dark Horse” infringes upon the Gray's copyright in the musical composition of the 8-note ostinato in the song “Joyful Noise”).
• Another interesting ruling comes as part of an earlier-filed case Hall v. Swift, CV 17-6882-MWF (ASX), 2020 WL 5358390 (C.D. Cal. Sept. 2, 2020), in which the trial court granted Swift's motion to dismiss, on the ground that the disputed "Playas Gon’ play/Haters Gon’ hate" lyrics lacked sufficient originality to enjoy copyright protection, only to have the Ninth Circuit reverse the dismissal on the ground that the originality of the lyrics could not be determined as a matter of law, rather such disputes and questions, and their content, are best left for the jury.

What is “Fair use”?

A reasonable and limited use of a copyrighted work without the author's permission, such as quoting from a book in a book review or using parts of it in a parody. It is a defense to an infringement claim, depending on the following statutory factors: 

1. the purpose and character of the use, 
2. the nature of the copyrighted work, 
3. the amount of the work used, and 
4. the economic impact of the use.

17 USCA § 107. This affirmative defense presumes that unauthorized copying has occurred, and is instead aimed at whether the defendant's use was fair. It is a central component of American copyright law. Although its roots, like copyright law itself, may be traced to English courts, the doctrine first took hold in this country in Justice Story's opinion in Folsom v. Marsh, 9 F.Cas. 342 (No. 4901) (C.C.D. Mass. 1841). Fair use became more concrete when it was codified in the Copyright Act of 1976.

What happens if your music was stolen or used without your permission?

Ordinarily your lawyer would first attempt to address the issue through a correspondence with the alleged infringer or with the infringer's attorney or agent, and try to find an explanation to the situation. Perhaps the infringement was innocent, and if so, try to arrange for a peaceful solution. If that does not work, then the next step is to go to court, i.e. to file a complaint and have the judge resolve the dispute.

What happens if I am accused of plagiarizing someone’s music?

Plagiarism is immoral but not always illegal. Plagiarism is an academic issue, not one for the courts. "Plagiarism occurs when someone — a hurried student, a neglectful professor, an unscrupulous writer — falsely claims someone else's words, whether copyrighted or not, as his own."

If the expression's creator gives unrestricted permission for its use and the user claims the expression as original, the user commits plagiarism but does not violate copyright laws.

By contrast, if the original expression is copied without permission, the plagiarist may violate copyright law, even if credit goes to the creator. And if the plagiarism results in material gain, it may be deemed a passing-off activity that violates the Lanham Act, and such can also qualify as a criminal act under 17 USCA §§ 5–6.

Filing procedure in a music copyright infringement case

The filing procedure in a music copyright case does not differ from a regular commercial case, except that

1. One must also file Form AO121 “Report on the Filing or Determination of an Action Regarding a Copyright" at the time of filing the initial complaint. 
2. Once the $400 [current filing fee] is submitted, the clerk generates a case number, and issues the summonses for defendants' (the alleged copyright infringer), appearances. 
3. Once the process server serves the summonses with the copy of the complaint, the defendant has 21 days to respond.
4. If the defendant fails to respond, the clerk can enter a default, which is the equivalent of admission of liability.

How Gherman Legal can help establish if you have an infringement case

Attorney Gherman has had over 20 years of musical background and is familiar with the building blocks that comprise a song, a piece, or a musical track. He has a Doctorate of Musical Arts degree which gives him a unique perspective on music. Music copyright infringement is routinely determined by subjecting the two works to a side-by-side comparison under a "substantial similarity" test. If you think you have a legal issue regarding your intellectual property, contact us without delay, since a delay could negatively affect your remedies.

FAQ:

Can I perform copyrighted music?

Can you use 30 seconds of a copyrighted song?

Yes, but getting a license is the way to go. While there is a de minimus defense to infringement, there is no clear rule stating that a use is acceptable as long as you only use 5, 20, or 30 seconds of a song. Any use of copyrighted material without permission is copyright infringement.

How do you avoid copyright infringement in music?

Create your own original product, or get a license to use someone else's. "Thou shalt not steal."

What type of song can you legally copyright?

Any song, so long as it is an original work of authorship fixed in a tangible medium of expression. Copyright Office considers protecting intellectual property is important in most cases, and music industry is no exception, whether you are a business, or an individual songwriter / artist.

Can I use copyrighted music if I give credit?

Yes, but credit is not a substitute for a license, unless the music falls under the creative commons license.