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ivan@stellysee.de
| From | Ryan Williams <ryan@headphonetreats.com> |
| Subject | Re: Copyright |
| Date | Mon, 8 Sep 2003 21:54:49 -0400 |
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> This is where the mailing to yourself comes in. I have a cassette of a
> song
> a friend and I wrote in 1994, about OJ Simpson. It is in a sealed,
> postmarked envelope. If anyone ever records that song and claims the
> work
> as their own, my sealed postmarked copy proves categorically that they
> are
> in violation of my copyright.
This may have been touched on a bit by others here, but this is actually
not the case. Sure, you have copyright to the work as soon as it is in a
"fix form of media" (ie. tape, CD, sheetmusic, etc.) However, if you
just do the postmark thing and someone rips off your song, your case
will not even make it to trial unless you have it registered with the
Copyright Office. Copyright infringement is a very difficult thing to
prove, and the law gives the benefit of the doubt to the infringer. It's
also not as simple as just having the registered copyright. To win an
infringement suit you have to prove 3 things...
1) Date of work's creation - and the US courts only recognize an
official Copyright registration for this
2) Access - You have to prove that the infringer had the opportunity to
hear your song in the first place. This has gotten easier with the
internet, since all you have to do is post up an MP3 on your site and
anyone in the world can get to it. But if you wrote, recorded and
officially copyrighted a song, but then stuck it in a draw and never let
anyone hear it... you would have very little chance of proving access.
3) Similarity - This is by far the most difficult aspect of of the
trial, as it can be fairly subjective. It basically comes down to two
musicologists, one for each side, battling it out over a note for note
account of the song. Essentially the jury makes the final judgment call.
So, it is a very difficult thing to prove, though it can be done.
There are countless famous accounts of copyright trials. Members of the
Beatles were a very famous target for one. Chuck Berry sued John Lenon
for ripping off one of his songs on "Come Together" and won. The
settlement was unusual and suggested by Berry. He had John promise to
cover several Berry songs on a record, hence the Rock and Roll record he
did soon after. Good business for Berry and I'm sure John was happy to
do it.
George didn't fare as well in his case over "My Sweet Lord". Bright
Tunes sued him saying that that it infringed on "He's So Fine" and they
won. Harrison himself took the stand with guitar in hand an demonstrated
the difference in each song, but he lost nonetheless. In an odd
footnote... at the end of the trial, the judge - who was a big fan of
the Beatles - consolingly said to Harrison "you know, I really like both
songs" to which Harrison's lawyer piped up "if you like BOTH you then
admit they are independent works!". Oh well! :)
Most typically, these things are settled out of court. The artists and
labels prefer to avoid the embarrassment and cost of trial. So, a
self-mailed letter might be enough to score some hush money from an
especially skidish label, but if you really want to have the leverage
and protect your work, make sure you can prove all three points.
Ryan
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