A copyright is formed when a musical work is created, but the creator needs to register their work with the US Copyright Office. This step is necessary if the creator plans to enforce their copyright. A copyright is enforced by a lawsuit for damages. In order to have the right to enforce a copyright in this manner, creators must own a copyright that has been registered with the US Copyright Office. Copyright is a matter of federal law.

Music copyright laws apply to musical works, including musical scores that are written in the form of sheet music, broadsheets or using other methods of notation. A recording of a musical work is protected separately as a work of sound recording, and it should be registered separately for copyright protection. Lyrics or words to a song are considered literary works, and they have a copyright that is usually separate from that for the musical score.

A published edition of a musical score is protected by yet another, separate copyright. New arrangements, even if the copyright in the underlying musical work has expired, are also copyrighted separately.

Copyright protection of a musical work gives the owner of the copyright in a musical composition or performance the exclusive right to make copies, prepare works that are derivative of the copyrighted work, sell or distribute copies, and perform the work publicly. Any other person or entity who wants to engage in these activities using a copyrighted work must obtain the right to do so from the copyright holder. They would usually have to pay for the privilege.

The owner, or holder, of a copyright may authorize others to exercise their exclusive rights. The copyright of a musical work includes the right to make and distribute, or to authorize another person or entity, to make and distribute, the first sound recording of a performance of the musical composition. When a musical composition is published in the U.S. on phonorecords, other people are allowed to make sound recordings of the musical composition subject to a compulsory licensing provision in the copyright law.

A musical composition and a sound recording of a musical composition are two separate works. A registration for a musical composition covers the music and lyrics, if there are lyrics that are an integral part of the work. Registration for a musical composition does not cover a recorded performance of the composition.

How Is Musical Work Infringement Proven?

One of the defenses available to a person who has been accused of copyright infringement is the public domain defense. This defense entails arguing that the musical work is in the public domain. Basically, this means that the work is no longer subject to copyright protection, but is available for any use that any member of the public might wish to make of it.

Copyright protection can be lost in two ways, through the passage of periods of time as specified in copyright law and through the actions of the person who holds the copyright.

The loss of copyright protection through the passage of time is somewhat complicated. The rules are as follows:

  • Works Created on or After January 1, 1978: Musical works that meet this condition, are protected for 70 years after the death of the author of the work. If a work has two or more authors, copyright protection lasts for 70 years after the death of the last surviving author. For “works made for hire,” that is, works created for corporations or limited liability companies, protection lasts for 95 years after publication or 120 years after creation, whichever date comes sooner;
  • Works Created Before but Published or Registered After January 1, 1978: The copyright term for these works is computed in the same way as for works created on or after January 1, 1978, but in no case would the term of copyright protection expire before December 31, 2002. For works published on or after December 31, 2002, the term of copyright protection would not expire before December 31, 2047. Only after the expiration of the period of copyright protection does the work enter the public domain;
  • Works Created and Published or Registered Before January 1, 1978: These works are protected for 75 years as of the date the work was published with a copyright notice or as of the date of the registration if the work was registered in unpublished form. For these pre-1978 copyrights still surviving on October 27, 1998, the term of protection has been extended by 20 years, making the total term of protection 95 years.

Works may also be dedicated to the public domain by their creators. Works that are in the public domain should not be confused with works that are publicly available. For example, while works posted on the internet are publicly available, they are not necessarily in the public domain. If they are not in the public domain, then copying these works could violate the creator’s copyright.

How Can I Prove Access?

A copyright holder who wants to prove infringement must prove that the person claimed to have infringed on the copyright copied the work. This can be done by providing direct evidence of the copying. This would be, for example, testimony of a witness who saw the copying first hand. Or, the copyright holder might be able to prove that the infringer had direct access if the copyright holder sent the work directly to the claimed infringer or someone close to the infringer.

Still another way to prove copying is through circumstantial evidence. This would entail showing that the claimed infringer had access to the work and then that the two works, the copyrighted original work and the copy, are substantially similar.

In terms of copyright law, access refers to the issue of whether a person alleged to have infringed a copyright had access to the copyrighted work in question. Access would be the ability to see, hear or otherwise obtain the copyrighted material. If the person alleged to have infringed on the copyright never had access to the copyrighted material, the person has a strong argument that they could not have copied it, and that any similarities between the work that is alleged to be excessively similar to the copyrighted work are coincidental only.

Proving access alone is not enough to establish copyright infringement, but it is a critical element of a case for infringement based on access and striking similarity. To prove access, the holder of the copyright may show that the work was widely disseminated to the public, so the claimed infringer could easily have had access. Still another way to prove copying is through circumstantial evidence. This would entail showing that the claimed infringer had access to the work and then that the two works, the copyrighted original work and the copy, are substantially similar.

A court may infer that the person alleged to have infringed copyright had access if the two works are so strikingly similar that there can be no explanation for the similarity other than copying. Courts in the U.S. disagree on whether a showing of “striking similarity” is enough to prove copying without any further proof of access. This issue can become complicated, so a person would want to consult an experienced music intellectual property lawyer for guidance.

How Do I Prove If A Work is Substantially Similar to Mine?

Courts have come up with a number of tests to determine whether two works are substantially similar. A court may rely on an expert of some kind or they may prefer the opinion of a non-expert. Or, a court may want the opinions of both an expert and a non-expert. Or a court may judge a work subjectively or analyze its elements closely and critically.

Courts have relied on several factors to help them determine whether two works share a striking similarity. Some of the factors involved are:

  • Whether similar parts of the two works share a certain uniqueness, intricacy, or complexity;
  • If the copyright holder’s work contains an element that is unexpected or idiosyncratic and whether that element is repeated in the work that is alleged to be a copy;
  • Whether the same errors or mistakes appear in both works;
  • Whether the copyright holder planted fictitious entries that show up in the copied work. For example, copyright holders often intentionally plant fake names or places in factual works such as maps or directories, so they can provide proof of copying in an infringement case. The theory is that their appearance in an allegedly copied work cannot be explained away by innocent excuses;
  • Whether the allegedly copied work shows obvious or crude attempts to create the appearance of dissimilarity.

For example, in the case of Rogers v. Koons, a professional photographer, Rogers, took a photo of a man and a woman with their arms full of puppies. The photograph was widely distributed to the public on greeting cards and other merchandise.

A famous sculptor, Jeff Koons, saw the picture on a postcard and decided to make a sculpture based on the photograph for an art show whose theme was the banality of everyday items. After removing the copyright notice from the postcard, Koons gave it to his assistants and directed them to use it as the model for a sculpture. He told them that as much detail as possible should be copied, while noting that some details would be added and some elements altered.

Koons sold three of the sculptures for a total of $367,000. Rogers learned of the copying and sued Koons for copyright infringement. Koons admitted to having copied the image. The Court found both that the sculpture was substantially similar to the photo and that Koons had access to the photo. The court noted that the similarity was so close that the average lay person would recognize the sculpture as a copy of the photo, which, the court said, was the standard for evaluating a claimed copy. Thus, Koons’s sculpture was found to be a copy of Rogers’s photo and an infringement on Rogers’s copyright.

Aren’t Similarities Expected or Inevitable?

The substantial similarity measure as applied to musical similarities has been criticized as a poor measure when applied to musical creations. Be that as it may, generally, in deciding whether or not musical works are substantially similar as a whole for the purposes of copyright analysis, courts will look to several different musical elements to determine similarity including, but not limited to:

  • Patterns and groupings of notes and musical phrases;
  • Melody;
  • Metric structure;
  • Harmony;
  • Unexpected departures from the normal metric structure;
  • Particularly intricate measures or sections.

Song lyrics are considered in the same manner as written works. They are examined for similarities in their themes, plots, ideas, and writing styles. Compositions comprised of both lyrics and instrumental aspects are examined for similarities in both their musical and verbal elements.

There is no doubt that proving substantial similarity of musical works would be a challenging task even for an experienced copyright lawyer. A person who wants to sue for copyright infringement would be well advised to consult an experienced intellectual property lawyer.

Can You Accidentally Infringe?

Basically. copyright infringement is never considered to have happened accidentally. It is a type of strict liability violation of the law. A person can be held liable for copyright infringement even though the person did not intend or even realize that they were infringing a copyright.

Should I Consult a Lawyer?

A music copyright attorney knows this complex area of the law and specifically how copyright law is applied by the courts in the place where a lawsuit might be brought. This is especially important, because different courts make use of different tests and measures. So you want an experienced intellectual property lawyer who is familiar with the state of copyright law in the location where you live.