In the Case of a Musical Work, How is Infringement Proven?- Access – When proof of access shows a similarity between time and space between defendant’s contact with plaintiff’s work and the creation of the alleged infringement
- Similarity – Can be overcome with a public domain defense
How Can I Prove Access?
Proof of direct copying is rare. If you want to prove that someone had access to your work you must show that you are the owner of a valid copyright, the person who you accuse had access to your work (via the radio, TV, Internet, etc.), and that there is substantial similarity between your work and the alleged infringer’s work. You need only show a reasonable possibility that the infringer had access- you don’t actually have to catch him red-handed.
How do I Prove if Another’s Work in Substantially Similar to Mine?
There are two parts to such an analysis:- Extrinsic – With the use of expert testimony, courts will review the similarity between the ideas
- Intrinsic – Courts will review the similarity between the two expressions of the idea
Aren’t Similarities Expected or Inevitable?
Yes. Because there are only a limited number of musical elements- the seven notes of the traditional western scale (“do, re, mi, fa, so, la, ti”) plus the five sharps or flats- certain similarities between musical works are expected and inevitable. The issue is to decide at what point the inevitable repetitions become impermissible takings.
Can you Infringe without Being Guilty of It?
Infringement need not be intentional. There is the concept of innocent infringement. It is possible that an author might create a work that is unconsciously based on a prior work and therefore impermissibly infringes the original copyright owner’s exclusive right to prepare derivative works. This is not a defense, however. Additionally, there is the doctrine of vicarious or related infringement. A person who profits from an infringing performance, for instance, and who somehow supervises or has the right to control or supervise the performance, is just as liable as the actual performer.
Should I Consult a Lawyer about my Copyright Issue?
The deadlines and regulations for copyright registration are detailed and strict. An attorney can help you meet all the deadlines and fulfill all the requirements. A lawyer can also participate in on-going research to make certain no one else is using your copyright without your permission. Additionally, if you have an issue of copyright infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core of your case. |
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