Legal question for a qualified publishing attorney.

J

jokerone

Guest
Ok,

So lets say I write a song in an obscure genre (Bluegrass, Gregorian Chant, etc.)
And the song is meant to be humorous to some extent. (think Walk this Way by Aerosmith).
Lets call it Amish Girl in the Corn Crib or something.

Then after you finish it, you google the title and find another song in the same genre with the same name, and the same subject when it comes to the lyrics, but the lyrics are different, and the song is different, but they are like Coke and Pepsi, not like Coke and a salad.

Is my song and title a legal problem?

thanks.
 
I'm no attorney, but I'm pretty sure you can't copyright a title. Look at how many songs are called "Ship of Fools" or "Stagger Lee". There must be at least three of each.
 
BSG is right, you can't copyright a title. No problem there.
You can't copyright a genre, no problem there.
You can't copyright a storyline or topic, no problem there.
If some of the lyrics are the same and is an identifiable signature of the song, there might be a problem. But that comes down to a judge's opinion and someone would have to get you that far through the legal process before you have to be concerned about it.

And really... if you wrote a song then searched and found something similar, for sure your song is different enough not to be considered plagiarism or anything.
 
There are no restrictions on what you can call a song' you can really only have copyrights over the actual song itself. Having said that there are a whole world of different copyrights - such as the publishing copyright (who wrote) mechanical copyright (Who owns the master recording) and so on. Quite fascinating when you get into it - shows how record companies have been gaming musicians for decades.
 
My good friend is a musicologist. She testified in several major cases including George Harrison's. She once told me that the real test is whether a reasonable person hearing your song would think of the previously established song instead. Walking past an office in my agency, I heard a soundtrack a creative team was approving. I leaned in and said, "Chariots of Fire". They re-wrote the melody. Remember that there are a lot of songs that DO sound the same and it gets confusing. Looking at the labels you find that the artists on both are with the same label. Therefore the owner has no problem. Often songwriters allow someone in their label's stable to use a similar sounding song since they're all in the same stable. It's true you can't copyright titles, chords or genres. It's generally the lead line (melody) and the specific arrangement of the words. Maybe an entertainment lawyer could add more here.
Rod Norman
Engineer
 
Rod Norman said:
My good friend is a musicologist. She testified in several major cases including George Harrison's. She once told me that the real test is whether a reasonable person hearing your song would think of the previously established song instead.
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I can't really offer any advice here but there was a very interesting thread not to long ago about parodies and songs which were heavily influenced by others.
Might be worth a look?
 
thanks. the reasonable person is the lawyers friend or enemy I guess. :-)

the beat, tone, chords would be different, as well as the lyrics, but they might be describing the same sort of behavior, which is what I was worried about.
 
It's just my opinion, but if I were writing a song I'd want to be sure to give it a unique title-- not for legal reasons, but rather to avoid any possible confusion with other songs. For instance, if someone searches for the title of your song, I should think that ideally you'd want your song to be the only one that comes up.
 
SeaGtGruff said:
It's just my opinion, but if I were writing a song I'd want to be sure to give it a unique title-- not for legal reasons, but rather to avoid any possible confusion with other songs. For instance, if someone searches for the title of your song, I should think that ideally you'd want your song to be the only one that comes up.
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This is something I consider for the same reasons.
Our royalty collection people here go solely on writer's name, song name, and track length.
Given that track length can vary (by a second) depending what player you use, and the writer may not be the performer, that doesn't leave much of a chance sometimes.
Those people don't need an excuse to get it completely wrong....all the time...
 
SeaGtGruff said:
if I were writing a song I'd want to be sure to give it a unique title-- not for legal reasons, but rather to avoid any possible confusion with other songs. For instance, if someone searches for the title of your song, I should think that ideally you'd want your song to be the only one that comes up.
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I agree with this completely.
However, the simple fact remains that lots of songs have the same title and you call it what you call it.
For example, what do Joni Mitchell, Weird Al Yankovitch, AC/DC, Ted Nugent, Adam and the Ants and Jeffrey Lewis have in common ? They've all come up with songs called "Dog eat dog."
 
grimtraveller said:
I agree with this completely.
However, the simple fact remains that lots of songs have the same title and you call it what you call it.
For example, what do Joni Mitchell, Weird Al Yankovitch, AC/DC, Ted Nugent, Adam and the Ants and Jeffrey Lewis have in common ? They've all come up with songs called "Dog eat dog."
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True, and you see the same sort of thing in the other arts. But even if the title were some common phrase like "Dog Eat Dog," I'd want to alter it to give it some kind of memorable spin-- e.g., "Little Dog Eat Big Dog." But that's just me. :)
 
I know what you mean. In my case, I'd be surprised if anyone ever came up with titles like "Am I the way you imagined me ?", "Bump" {a song about pregnancy !} or "Kamikaze on the 100th floor" {itself taken from a line in Ted Nugent's "Dog eat dog" but about Jesus}. A bit miffed too.
 
That sounds like good advice! Off topic: I wonder how many teen bands write a song with the phrase, "NIGHT time is the RIGHT time" and think it is original? Hah-hah.
 
I'm an intellectual property attorney. However, I cannot, and do not, give legal advice to non-clients (my malpractice carrier would not let me).

That said, song titles are not protectable in copyright nor, generally, as trademarks (though there are exceptions).

I recently had an issue with YouTube over something similar. I posted a video that I shot called, "A Day and Night in Harbin," that was all original video that I shot, with a music track that I had licensed. Some broadcast company in India filed an objection to it because, apparently, they have some program that airs there called something very similar. I advised YouTube that I owned all rights in my video and had rights by license to the soundtrack. I told them I'd like very much to know the name of the company in India that was interfering with my rights, as I had some things I'd like to discuss with their general counsel. Amazingly enough, the Indian company's claim was dropped within the week.

jokerone said:
Ok,

So lets say I write a song in an obscure genre (Bluegrass, Gregorian Chant, etc.)
And the song is meant to be humorous to some extent. (think Walk this Way by Aerosmith).
Lets call it Amish Girl in the Corn Crib or something.

Then after you finish it, you google the title and find another song in the same genre with the same name, and the same subject when it comes to the lyrics, but the lyrics are different, and the song is different, but they are like Coke and Pepsi, not like Coke and a salad.

Is my song and title a legal problem?

thanks.
Click to expand...
 
Chili said:
You can't copyright a storyline or topic, no problem there.
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That's not quite correct. "Topics" are not protectable in copyright, but storylines, i.e. stories, most certainly are.

The legal rule of thumb for copyright is that you cannot protect ideas, but you can protect the expression of ideas. If the story is sufficiently specific and you copy it, you can be liable for copyright infringement.

If some of the lyrics are the same and is an identifiable signature of the song, there might be a problem. But that comes down to a judge's opinion and someone would have to get you that far through the legal process before you have to be concerned about it.
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Again, not quite correct.

This is the analysis for copyright infringement: To prevail as a plaintiff, you must prove ownership of a lawful copyright and unauthorized copying by the defendant. The latter, at least in the US, is proven by a copyright registration (a registration is a prerequisite for a lawsuit in the US, except for Berne Convention works).

Copying is rarely proven by direct evidence, i.e. you'll rarely have a situation in which a witness will testify, "I saw him copying that work." Accordingly, it has to be proven circumstantially.

Circumstantial copying is shown by demonstrating access to the original by the defendant and substantial similarity of the accused work to the original. This is evaluated on a sliding scale: if there is lots of access proven, relatively little substantial similarity has to shown, and vice versa.

Substantial similarity, in turn, is analyzed by a two prong test: there must be both objective and subjective substantial similarity. Objective similarity is established through expert witness testimony, expert analysis, etc. Subjective similarity simply asks the trier-of-fact, "Would a reasonable person think think the accused work was copied from the original?"

The entire analysis MAY be made by a judge, but is usually determined by a jury.

There is no "magic amount" you can copy, below which you are immune to liability, i.e. no magic number of measures, no magic number of notes. Though I don't give legal advice to non-clients, I will advise everyone here: If you don't want to risk incurring infringement liability, NEVER COPY. Period.
 
daveking77 said:
There are no restrictions on what you can call a song' you can really only have copyrights over the actual song itself. Having said that there are a whole world of different copyrights - such as the publishing copyright (who wrote) mechanical copyright (Who owns the master recording) and so on. Quite fascinating when you get into it - shows how record companies have been gaming musicians for decades.
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I'm not quite sure what you mean here.

The music of a song is protectable in copyright. The lyrics are separately protectable. A recording of the song is subject to separate copyright protection. A video of someone performing the song is separately protectable. Owning the physical master recording does NOT mean that you own the copyright to the recording, or to the material that was recorded.
 
jokerone said:
thanks. the reasonable person is the lawyers friend or enemy I guess. :-)
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First, as I've outlined, the "reasonable person" test (which was misstated) is only one part of the analysis. Also, I know this was intended as a joke, but having been litigating copyright and trademark for around 25 years, I can tell you that, rather than simply dismissing both the law and the legal process all authors (the term-of-art for someone who creates protectable work) would be well-served if they actually learned something about the subject -- lots of aggravation (and legal fees) could be easily avoided.

the beat, tone, chords would be different, as well as the lyrics, but they might be describing the same sort of behavior, which is what I was worried about.
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Here's something else to worry about: Copyright infringement is strict liability, meaning, "I thought it was legal because a bunch of people on a music website told me so," is not a defense to either infringement or liability.
 
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