This my second video in what looks like it might become a series… This one, too, has been written after receiving an email from someone with this very question. See what you think:
I just got an email asking: What would you do if someone was trying to steal your copyrighted song?
I’ve seen some situations like that, so, for what it’s worth, I can tell you what I think – from at least a couple of angles.
First, a Pragmatical AnswerYou need to start by asking a few basic questions:
1 – Who are you?
2 – Is the song registered?
3 – Is it published?
4 – How much of it was stolen?
5 – Who is the thief?
Re.1. Who are you?
– If you’re an unknown or an independent – your resources are limited.
– If you’re an established or “signed” artist – your resources tend to be much bigger.
A lot of what I’m going to say here applies mainly to the unknown indie.
Re.2. Is the song registered?
– Under the current law you own the COPYRIGHT to your song as soon as you create it.
– But if you didn’t formally register it, you may have a hard time proving that you’re the original creator.
Re.3. Is it published?
– If the song is self-published (eg. on YouTube or on your website) you can show the release date quite easily – but it’s not proof positive of ownership.
– If, on the other hand, it was released through an established publishing house – then, it really is THEIR problem!
Re.4. How much of it was stolen?
– Was it the whole thing? Or was it just the chorus or some other melody line? Or maybe a particularly intricate lyric you sweated over for hours?
– Whatever it was, you’ll find there are many grey areas here.
It can be really difficult to positively prove that a particular line (melody or lyrics) was “stolen” as opposed to coincidentally created by the other person.
Re.5. WHO is the thief?
– Is it Harry next door?
– Or is it some superstar everybody knows?
If it’s Harry, you can just drop him a “cease and desist” email and – in surprisingly many cases, it will work!
Now – if it’s a superstar – you need to know going in, that your claim will be put to a severe test.
You’ll be up against his army of lawyers and a whole different level of preparation and proof – and expenditure – will be expected of you, should you decide to proceed. Also, there’s a good chance that you will be counter-sued! “No, it’s YOU who stole our song!”
There’s also another thing to keep in mind. When unknown writers sue for plagiarism, the courts tend to be prejudiced against them. Why? It’s because they know that some (especially inexperienced) songwriters can be either opportunistic, or oversensitive. Or both.
And so, many cases get thrown out if the defense can show that the plaintiffs are either:
– Simply wrong – The offending song is not similar enough, or its similarities are clearly accidental
– Equally guilty (Pot calling the kettle black) – Their original work was equally similar to or inspired by some other work.
– Demonstrably egotistical – They just “channelled” their song, being the inspired genius songwriters they are, and have no doubt about the divine origins of their composition. Lawyers love to tear this sort of attitude down.
– They’re shown to be insecure – So they make mountains out of molehills.
OK, so that’s the attitude the typical novices are up against. The deck is stacked against them.
As for the more experienced or established songwriters, you have two basic attitudes:
* They’re either very disciplined – and this means that whatever they create is properly copyrighted and protected from the get go – and they don’t EVER show their work until it’s published and released, And if someone steals it – they got lawyers for that.
* Or – they’re a bit more relaxed and don’t always bother with that sort of thing, knowing that if they showcase their unprotected song to anyone shit MAY hit the fan – so they either don’t do it – or they don’t care. For this kind of a pro songwriter, the final vindication is in the success of their PUBLISHED and DISTRIBUTED work and they don’t care who tries to “steal” it. In either care, the established songwriters will have easy access to zealously eager lawyers who will only be too happy to deal with that.
Now, as we know, there are thousands of copyright infringement cases each year.
It may surprise you to learn that many of these cases are not cut and dry at all, owing their prosecution more to the legal zeal of the parties involved than actual merit.
Of course, there ARE legitimate cases out there as well, some quite notable (see my show notes for details).
But that’s the background you need to be aware of.
So, let’s get back to the injured indie who believes his song was stolen.
If you have a genuine and justified case, you need to consider your own position – from a highly pragmatical point of view. So, if your case isn’t 100% ironclad – I’d urge you to think twice before proceeding. Make that 110%.
Now, if a professional writer or artist steals your song – and you can PROVE it (and this includes “access” – or proof that he could indeed have heard your song prior to releasing his own) – then I can almost guarantee that any copyright lawyer will probably work on a contingency basis with you.
If your proof is less than stellar, however, the only lawyers you’ll attract are opportunistic blood-suckers. And they probably won’t work on contingency either.
In either case, I’d advise you to first TALK to the infringer BEFORE you do anything else! Kindly and politely.
Of course, if that infringer is some deadbeat wannabe down the street – do you really care?
So, my highly pragmatical answer is:
* If your case IS legitimate * AND you’re fully aware of the time, energy, nerves and EXPENSE any legal action will involve * AND you consider the outcome of all this hassle WORTH it
… then go ahead and retain a lawyer.
In ALL other cases, you should probably bite the bullet and let it go. Maybe it’s not fair, but going through the mud of a court battle over something like this is even less fair.
But, hey… don’t be a doormat either! There’s a balance you must strike here. You need to be as rigorous as you can when analyzing your own case before you make your final decision.
And now I’ll give you a slightly more general and philosophical comment.
Consider the very idea of “intellectual property”.
At first glance, it seems to make sense. Just like physical property, if you own it, you want your rights to it protected. The government’s most fundamental role is supposed to be the protection of your property rights. So if someone steals from you, you demand that protection.
And yet – intellectual property is not quite like physical property.
Take language. Do you own it? Do you believe that every sentence you utter falls under the same definition or standard?
Or take melody or chords. Can you prove that the melody line or chord progression you wrote isn’t derivative or that someone else didn’t write that before you?
What would you do if someone kept interrupting your creative process telling you that “uh-oh, you can’t write that, it’s been done”? If they had a sufficiently large database of references – and a nitpicking mindset – they would stop you at EVERY point of your creative process. You wouldn’t be able to write a thing!
If architects had to follow the present copyright laws to the letter – we wouldn’t have buildings to live in!
There would be no jazz, no blues and no folk today – each of these styles famous for their constant and liberal “borrowing” from other songs – if they had been restrained by such regulations.
Ironically, back when copyright laws did not exist or were much more relaxed, music was MUCH more varied than today! Think about it. Turn on your radio. The stuff you hear is all COPYRIGHTED and “legally original” songs!
It’s easy to make a case of how over-regulation of copyrights stifles creativity! Those IP laws are actually a hindrance to our freedom and not the source of its preservation!
They corrupt us more than they help!
Mark Twain said, “Only one thing is impossible for God: to find any sense in any copyright law on the planet”.
And I agree.
And to make things worse, legislators continue to refine, complicate and narrow down the definitions of what copyright theft really is – to the tune of THOUSANDS of pages of legislation! And they’re just getting warmed up.
So, not just the melody line, but also the length of the phrase, the rhythm, the instrument used, the style, the context – and so on and on.
In other words – they’re okay with the whole song being a patchwork of “borrowed” lines but – they object to an otherwise reasonably original song which contains a phrase just a note or a bar longer than one of those arbitrarily set boundaries. Boundaries which they constantly move, incidentally.
So anyway, this is a lawyer’s game. Like wrestling with a pig. You get covered with mud, but the pig enjoys it.
I have a problem with this moral double-standard in IP laws.
I now find it hard to continue to unreservedly embrace copyright laws with quite the same enthusiasm as I had in the past, even though – as a musician – I know there’s something really appealing about these laws, on the surface.
I mean who doesn’t like receiving royalty checks from the performances or reproductions of our work without lifting a finger!
But here’s my problem – we get this right as a result of a government-granted monopoly which, really, isn’t theirs to grant!
And you know how it goes – if we say yes to one monopoly – ours – we have to agree to all the other monopolies – theirs.
So even if we hate those other unfair laws and monopolies, we let them slide, because WE are the potential beneficiaries of ONE monopoly law.
Do you get the irony of this double standard or is it just me?
Most artists who still love the idea of government-enforced “copyright” don’t realize that “public copyright”, such as the Creative Commons one, is in many ways just as powerful – and profitable – but without the gun pointed at your head, should you disagree!
For me personally, I’ve come to see intellectual property laws as a gateway drug to totalitarian control of my work through the power of the state.
How’s that for a song idea!
Contrary to what it says on the box, copyright laws do NOT encourage creativity and progress – they actually achieve the opposite of what was intended!
In the words of the prominent lawyer, economic and legal scholar, Stephan Kinsella, “In the name of capitalism and the free market, [IP] imposes artificial scarcity on things that are already infinitely reproducible.”
He goes on to argue that the same market that is working to increase the abundance of scarce goods is subverted to make scarce that which is, by its nature, inexhaustible.
Given the reality we live within today, your best course of action when encountering copyright infringements on your work is to FIRST take a deep breath.
THEN, ask yourself the five original questions.
1 – Who are you? 2 – Is the song registered? 3 – Is it published? 4 – How much of it was stolen? 5 – Who is the thief?
Next, consider the philosophical and moral dimensions I just outlined.
And only then decide how to proceed.
And while you’re pondering this, think about the successes of companies working under the Creative Commons license, GPL or some other “free” or seemingly unprotected system – that’s about 90% of the entire Internet as you know it!
Are they sacrificing their profits and well-being by seemingly not protecting their copyrights? Is Google suffering on its “free” model? Or “Facebook”?
Or are they thriving within the level playing field of the Internet, monetizing related and parallel incomes instead?
In other words, have they embraced the new business model – such as what I elaborate on within the pages of the Online Music Business Crusher – or are they stuck in the past?
OK, I’m done. I’ll leave you with this.
Before you start pursuing any of your pet copyright violators, just make sure that your problem really is with “copyright infringement” and not with obscurity…!
Among the pro and con sources for the above video are: