Of course, our discussion on copyright protection wouldn’t be complete without us talking about copyright infringement and answering the question: What happens if someone infringes upon your copyright?
There are many advantages to having copyright ownership which in turn grants the owner with exclusive rights as we have discussed previously.
Therefore, anyone who is found exercising those privileges without the knowledge and consent of the copyright holder, is potentially subject to criminal and civil proceedings for the infringement or violation of the copyright.
Which begs the question…
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What Happens If Someone Infringes Upon Your Copyright?
In the digital age, music can be shared and sold with the click of a button, making it easier than ever for people to steal music and make money from it. This may happen through blatant misrepresentation, but it can also occur when pirated tracks are burned to disc and sold out of the trunk of someone’s car in a parking lot.
The thing about resolving a copyright dispute is that you must be able to prove your ownership, that the infringement occurred, and that you were harmed by the situation.
Meaning you have suffered financial harm as the result of someone infringing upon your copyright, or you need to prove that someone made money off of your music.
If someone buys your music and then plays it during a live stream of a gaming marathon, your copyright may have been infringed upon, but can you prove that you lost out on money as a result?
The Catch 22 of Infringement
You could make the case that someone else generated money from your music, and therefore you’re entitled to a cut of the money. But, if someone illegally downloads your music and listens to it privately, did you suffer harm?
You may be able to claim that you missed out on a sale, but the person who downloaded the music could say that they weren’t going to buy it anyway and didn’t have any intention of distributing or selling it to others. Can you prove otherwise?
As you can see, copyright infringement isn’t as cut and dry as you might think. This is also a big part of the reason why record labels stopped trying to sue people for pirating music. The problem became so widespread in such a short period, and it was just too time-consuming and expensive to try to prove damages for every instance in court.
If, however, you do suffer damages as the result of someone infringing upon your copyright, you would be better served by an entertainment lawyer who specializes in copyright claims. Most legal cases involving copyright fall under the U.S. Copyright Act, so you’ll need someone familiar with every little detail of these laws to be successful.
Do You Remember A Song Called “Blurred Lines”…
If you’re sued for copyright infringement due to someone claiming you used their copyrighted works, as was the case recently with the estate of Marvin Gaye claiming that the song “Blurred Lines” by Robin Thicke, T.I. and Pharrell Williams ripped off Gaye’s “Got to Give It Up”, things can get complicated.
Even if you didn’t directly copy someone else’s work, if the work sounds too similar, you may still be guilty. The problem here is that it can be next to impossible to come up with a song without stepping on any work that someone out there has created in the history of music. Even just listening to your favorite artists is bound to influence your writing style.
As a result, be prepared by keeping the above-mentioned records and files of your work so that you can demonstrate a creation timeline. If your song makes it big, as was the case for Thicke, you may have no choice but to bite the bullet and pay out if the track has already taken off publicly and can’t be changed.
With that said, there are some crucial factors to consider where infringement and protecting yourself are concerned. The following is based on excerpts from the Copyright Act as well as recent events that affect copyright and musicians.
Fair Use
A common misconception about music copyright and infringement is that every use of your work without your permission is considered infringement. Due to this line of thinking, artists assume that any form of infringement can be pursued for damages.
In reality, this is not the case, and there are a few scenarios where you might be grasping at air if you’re trying to claim damages.
What we are referring to here is Fair Use, as identified in the Copyright Act, which provides overarching protection to a few specific scenarios.
The Copyright Act specifically states that “the use of copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
As one might have guessed, this can be extremely subjective and hard to decipher, depending on the circumstances. The Copyright Act then goes on to state that when determining if a situation falls under the protection of Fair Use guidelines, the following criteria should be evaluated:
(1) the purpose and character of the use, including whether such use is commercial or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used concerning the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Fair Use is important to mention on both sides of the equation because it makes you more aware of what may or may not count as an infringement.
Furthermore, if you deliberately or through no fault of your own infringe upon copyrighted material, it is important to know if you fall under the protection of Fair Use guidelines.
In all, Fair Use cases can get tricky, but knowing that this protection exists can be helpful depending on the circumstances.
Remedies for copyright infringements.
If a Copyright infringement occurs, the best action to solve the problem can be a desist or cease a letter, or additionally, if the involved parties cannot come to an amicable agreement, the offender may be taken to a court of law.
Before The CASE Act, pursuing justice to the fullest extent of the system was very costly.
The CASE Act has now changed the playing field and made it a lot more affordable for independents to pursue issues related to infringement at an affordable cost and with less hurdles to jump through.
>>> Related Reading: The Music Modernization Act (MMA) Explained In Less Than 2 Minutes
>>> Related Reading: The Digital Millennium Copyright Act (DMCA) Explained In Less Than 2 Minutes
It’s also important to keep your copyright! No matter what you sign with a publisher or anyone else for that matter, hold onto your copyright and insist that you are the registered copyright holder.
This isn’t always possible but you want to do this because it protects your hard work and your future earning potential. No one can take your copyright from you, but you can easily let it slip through your fingers if you don’t read what you’re signing. If you can’t prove your ownership, infringement becomes a lost cause.
Above and beyond all this, I always recommend working with a legal professional if the situation warrants it. It pays to have an experienced legal professional on someone well versed in the music industry on your side.
Even if just to keep things in perspective, so that you don’t lose sight of the bigger picture.
Wrapping It Up
In conclusion, it is important to register your musical work. When a person is registered, the law recognizes you as the owner of the copyright. Additionally, the certificate of registration also stands as proof that copyright exists.
Your copyright is the key to making money today, tomorrow and years from now, so work with someone who understands both sides of the publishing and copyright equation before signing your name to ensure that you’re getting a fair deal.
Knowledge is the key to success in music, so soak up as much as you can now to be better prepared for the future.
>>> Related Reading: How to Register Your Copyright
>>> Related Reading: How To Create Copyright Agreements
>>> Related Reading: Typical Copyright Agreements
Kevin is the founder of Music With Flavor, which joined Whipped Cream Sounds in 2023. He is a seasoned musician turned industry expert. His passion for music goes beyond melodies; he delves deep into the intricate world of music marketing, striving to unearth the most effective strategies for indie musicians. However, Music With Flavor isn’t just about Kevin’s knowledge; it’s a network of industry experts handpicked to provide the most trusted advice. Kevin’s role is to pose the right questions, not just answer them, as he and his team tirelessly research trends, connect with artists, and gather valuable insights.
