Monday, October 22, 2012
Copyright - basic principles
First off... copyright law changes from jurisdictional region to jurisdictional region. Though most countries have very similar copyright laws, one cannot assume that they will be identical from place to place. What I will try to include throughout this series of articles are general principles that are common throughout the developed world, but keep in mind that wherever you are, there may be some differences.
Any creative work or invention can be copyrighted. As it pertains to music, we can copyright songs, symphonies, fugues, etc. For the purposes of this blog, I'll focus on songs.
You CAN'T copyright:
- band names (see another blog here)
- song titles
- chord progressions
None of those are indicative of being a creative work.
Now, for all intents and purposes, a "song" is comprised of lyrics and a melody for purposes of copyright. In general terms, drum beats, riffs, bass lines, etc. don't count. Just because you jammed with your buddies and came up with a full band arrangement of a bunch of chords and riffs strung together, you have not made up a song. You have made up an 'accompaniment' to a song. You most likely have no legal leg to stand on in terms of copyright.
If someone clearly rips off your melody and/or lyrics, there is really not much question as to whether someone has taken your song, or some "compositionally important" aspect of your song. A good example is the Rolling Stones' song "Has Anybody Seen My Baby?" Though the lyrics are entirely different, the melody is remarkably similar to a song by Canadian alt-country artist KD Lang's song, "Constant Craving." It was really indisputable in its similarities. The end result was that KD Lang was given songwriting credit as a co-writer for the song, and she is entitled to all royalties payable from that song - including those royalties payable prior to her being assigned co-writing credit.
It's worth noting here that the Rolling Stones did not intend to infringe on her copyright and plagiarize her melody. That doesn't matter a stitch. Point is... they did, and they had to make good on that. Apparently, Keith Richards' daughter was listening to KD Lang's album while they were writing their material. He figures that the melody just kinda crept in subconsciously, as he claims he is not a fan and wasn't actively listening to the song.
Now, there is some vagueness in this regard. If something is "compositionally important" to the song, then a judge may determine that copyright has been infringed. Steal the guitar riff from Fight For Your Right to Party and you'll sound like a thousand or so other songs. Steal the guitar riff for Black Dog by Zeppelin and you could find yourself in trouble.
Why the difference? That riff has clearly unique melodic content, and is of a duration that goes well beyond 'just a few notes strung together.' It's a full four-bar melody (not one bar repeated four times or anything) and makes up among the most recognizable parts of the composition!!
It is important to recognize that, beyond obvious lyrics and melody rip-offs, taking a copyright infringement case to court is a risk. Ultimately, it is up to a judge to decide if copyright has been infringed. Quite simply.... it is a judgement call. Taking a case to court really has to come down to a question of "what could this potentially cost me; how obvious is it (meaning how likely is it, really, that I will win), how well can I prove my case that I am the copyright owner, and what do I stand to gain (or lose) from this? More on that later.