I get calls from artists telling me that they’ve made a recording of one of their songs and have let others hear it. Then, one day they hear something on the radio by a popular artist that is remarkably similar to their song. What do you do?
For starters, always copyright your songs before you let anyone have a copy of it. The process is straightforward and may cost as little as $35. Here’s a rundown of how the registration process works. Until you’ve copyrighted your song, you do not have federal protection and cannot sue in federal court because of the infringement. What’s more, unless you register your copyright within three months after the infringement occurs (or when you first learn about the infringement), then you will have no right to sue for damages in federal court.
To prove infringement, you must show both (1) copyright ownership (see above regarding registration) and (2) proof of copying. Proof of copying is shown by either direct evidence – the infringer admits it – or indirectly by showing (a) the infringer had access to the work and (b) there is a “substantial similarity” between your work and the allegedly infringing work.
If you’ve timely registered your copyright, the first element is easy to prove. Proof of copying may be more difficult to show. Similarly, proving access may not be too difficult. Did you give your song to Beiber’s producer, manager or best bud, and next thing you know Beiber has released a song that sounds like yours? These facts would clearly show access to the work. Where the difficulty arises is in showing “substantial similarity” between the two works.
A two-part test is employed to determine “substantial similarity,” an objective extrinsic test and a subject intrinsic test. Both tests must be satisfied to show infringement.
The extrinsic test looks to whether there is a similarity of ideas and expression of a work as to the two works, and requires presentation of expert testimony. The works are broken down into their constituent elements (melody, chords, song structure, rhythm and groove) and comparing those elements for proof of copying as measured by “substantial similarity.” In the recent Blurred Lines decision involving the claim of Marvin Gaye’s estate against Robin Thicke and Pharrell Williams, a jury awarded substantial damages for infringement of the Gaye song, Give It Up. Thicke and Williams conceded that Blurred Lines was intended as tribute to Marvin Gaye.
The court required a side-by-side comparison of the sheet music of the two songs, rather than of the sound recordings. Of course, a comparison of sound recordings would provide a much richer canvas for comparison of the two works, because it will include sonic and rhythmic elements not apparent from the sheet music. Even so, the jury determined that Thicke and Pharrell had infringed Gaye’s copyright.
If the Gaye plaintiffs could not establish extrinsic similarity, then their claims would have failed because a jury cannot find substantial similarity without evidence on both the extrinsic and intrinsic tests. Sony Pictures v. Fireworks Entertainment. However, if the extrinsic test is satisfied, a jury must then make a determination on the intrinsic test. Intrinsic similarity is shown if an ordinary, reasonable listener concludes that the total concept and feel of the two pieces are substantially similar. The Blurred Lines court explained to the jury that trivial copying is not copyright infringement; copying is trivial if the average audience would not recognize the copying of the Gaye Parties’ work in the Thicke Parties’ work. Clearly, the jury determined that there was substantial similarity between the two works.
The trial court has cut the damages by about $2 million, from $7.4 million to $5.3 million, and the case is on appeal.