PTravel
Senior Senior Member
Okay, I'm at work and I'm having my coffee, so I'll take a little time to explain infringement analysis.
Copyright protection is authorized in Article I, Section 8 of the Constitution, and reserves exclusive rights to authors (and inventors) in their works of authorship (and inventions) for limited periods of time.
Copyright is infringed when one of the reserved rights of copyright is violated. These are found in 17 USC § 106. I'll address only the right to make copies.
Copyright is infringed when someone copies a protected work. Period. As I've noted, there is no magic quantum that can be copied before liability attaches -- if you've copied, you've infringed.
Copyright infringement requires proof of two things: ownership of a valid copyright and unlawful copying by the defendant.
Unlawful copying can be proven in one of two ways. Direct evidence of copying, e.g. someone testifies, "I saw him copying," is the easiest, but that kind of evidence is rarely available. It is therefore usually necessary to prove unlawful copying through indirect or circumstantial evidence. The courts have evolved an analytical framework for determining unlawful copying from circumstantial evidence.
Unlawful copying is evaluated by two factors: (1) access to the original work, and (2) substantial similarity of the infringed work to the original work. These are measured on a sliding scale, i.e. if there is a lot of access, relatively less evidence of substantial similarity is required to prove unlawful copying, and vice versa. Note, however, that if there is no access to the original, e.g. I wrote a lyric, put it in my drawer and never showed it to anyone, there can be no unlawful copying. In that instance, each author has an enforceable and independent copyright in their respective works.
Substantial similarity is evaluated by a two-part test: objective substantial similarity and subjective substantial similarity. Objective substantial similarity involves expert testimony and literal comparison between the original and the accused works. Subjective substantial similarity simply asks, "would a reasonable person, upon seeing the accused work, think it was copied from the original?"
If both objective and subjective substantial similarity are proven by a preponderance of the evidence AND access to the original is proven by a preponderance of the evidence, upon proof of a valid copyright, and absent any affirmative defenses to copyright infringement, e.g. fair use, the defendant is liable for infringement.
And that's the way it works. It does not involve counting a magic number of notes or measures.
Copyright protection is authorized in Article I, Section 8 of the Constitution, and reserves exclusive rights to authors (and inventors) in their works of authorship (and inventions) for limited periods of time.
Copyright is infringed when one of the reserved rights of copyright is violated. These are found in 17 USC § 106. I'll address only the right to make copies.
Copyright is infringed when someone copies a protected work. Period. As I've noted, there is no magic quantum that can be copied before liability attaches -- if you've copied, you've infringed.
Copyright infringement requires proof of two things: ownership of a valid copyright and unlawful copying by the defendant.
Unlawful copying can be proven in one of two ways. Direct evidence of copying, e.g. someone testifies, "I saw him copying," is the easiest, but that kind of evidence is rarely available. It is therefore usually necessary to prove unlawful copying through indirect or circumstantial evidence. The courts have evolved an analytical framework for determining unlawful copying from circumstantial evidence.
Unlawful copying is evaluated by two factors: (1) access to the original work, and (2) substantial similarity of the infringed work to the original work. These are measured on a sliding scale, i.e. if there is a lot of access, relatively less evidence of substantial similarity is required to prove unlawful copying, and vice versa. Note, however, that if there is no access to the original, e.g. I wrote a lyric, put it in my drawer and never showed it to anyone, there can be no unlawful copying. In that instance, each author has an enforceable and independent copyright in their respective works.
Substantial similarity is evaluated by a two-part test: objective substantial similarity and subjective substantial similarity. Objective substantial similarity involves expert testimony and literal comparison between the original and the accused works. Subjective substantial similarity simply asks, "would a reasonable person, upon seeing the accused work, think it was copied from the original?"
If both objective and subjective substantial similarity are proven by a preponderance of the evidence AND access to the original is proven by a preponderance of the evidence, upon proof of a valid copyright, and absent any affirmative defenses to copyright infringement, e.g. fair use, the defendant is liable for infringement.
And that's the way it works. It does not involve counting a magic number of notes or measures.
PTravel
Senior Senior Member
Yep. I normally wouldn't bother with a poster like this, but an awful lot of musicians read this site and I'd hate to see somebody on the receiving end of an infringement lawsuit because they listened to this guy.You opinionated pseudo-facts are entertaining.
I think it's good. Copyright questions get asked a lot in here, and there's never an expert around to answer them. It's only internet weirdos talking nonsense. Please keep shedding light.
PTravel
Senior Senior Member
Ooops -- that was my mistake. Sorry, man. Can someone tell me how to fix that?Hey - you neg repped me. I've never been neg repped before. That hurts, man!
PTravel
Senior Senior Member
And you're still wrong. Anyone can parody anything and permission is not needed. That is the very meaning of "fair use." Have you looked up my bar number yet?
jonny deep
Disappointing Member
Haha, no worries, I assumed it was an error as I wasn't being contentious.
PTravel
Senior Senior Member
I tried adding rep points, but the board won't let me. There's got to be a way to fix it.
jonny deep
Disappointing Member
Don't worry about it, I've had a couple of contributions from other members and it's only rep points!
jimmys69
MOODerator
It can't be fixed, but no worries. You meant no intentional harm. Plus, it just rep points that don't really mean anything. lol!
He likely getting more positive rep just because of the mistake.
jimmys69
MOODerator
Please stop dood. You are not being of any benefit to this thread by arguing nonsense.
Live to be productive another day.
jimmys69
MOODerator
Also, if someone with credibility and ability to show that they do, posted a 'how to record drums' article, well they wouldn't be an 'internet weirdo'. They would be someone who can back up what they are posting.
Does that make sense?
PTravel
Senior Senior Member
Nope, I AM a lawyer, admitted to practice before all of the federal and state courts of California, the 9th and 11th Circuit Courts of Appeal and the US Supreme Court, and Martindale rated AV Preeminent 5 out of 5. And, no, no lawyer would disagree with me about what I've said about copyright. This is Copyright 101 stuff and is black-letter law.
I'm not badgering anyone. YOU said some things about law that were absolutely dead wrong and, as I said in another post, I'm concerned that those people who are not lawyers and don't have access to one will believe you and cause themselves a lot of grief as a result. Don't give legal advice -- you don't know what you're talking about.
There are a lot of terrible laws, but fair use doctrine isn't one of them.
No, it is not the same as "stealing." You don't understand the purpose of copyright and its relationship to the First Amendment. Parody is fair use precisely because the rationale behind the First Amendment is the market place of ideas -- "bad speech" is countered with "good speech," not with censorship or suppression.
That's your call. I don't care. The thing is though, I can back my words up with actual examples and drum tracks that sound good. I actually do it, with proof and transparency. You don't have to agree with me or like my drums, but I actually do what I say and say what I do. In that regard, I walk the walk. You just talk the talk....and then get banned.....and then re-register....and get banned again....and so on.
PTravel
Senior Senior Member
That's the point, too. If I ever wrote a post on "how to record drums," I'd deserve all the negative rep anyone wanted to give me, because I know next to nothing about it. My opinion on recording drums is worthless, and I certainly wouldn't do a quick internet search and then post advice about how it is done. I ask questions on HR about what I don't know (or, better still, keep my mouth shut and just READ about what I don't know
). And I certainly wouldn't argue with the recording professionals who post here and know all about recording drums. As Greg said, he has proof positive that he knows what he's talking about and is not an internet weirdo . . . well, he may be an internet weirdo but he sure as hell knows how to write, perform and record great music.No, I've proven it, and continue to do so. Nice try though, fraud.
PTravel
Senior Senior Member
No, only to you.
Who cares about your opinion? You don't know what the law is, you don't know why it is the way it is, and you don't know how it's applied. Everyone can have an opinion. However, an opinion based on a truly profound ignorance of the subject matter is worthless.
That's because you don't understand WHY parody is a defense to copyright infringement.
You do have protection against changes made to it. The right to prepare derivative works is one of the secured rights of copyright.
The word is "ridiculous" -- no "e." Apparently, you don't understand the meaning of the word "parody," which does not mean, "to change something to make it funny."
As I said, you don't understand the meaning of parody.
