How many notes can you lift before it becomes plagiarism?

[therald2000]

The copyright law does not specify a certain number of notes that constitutes plagiarism. It simply says the there is access to the original work and that it is "substantially similar" to the original work. There is the parody exception, which is what made a career for Wierd Al!

 

[RogerL.]

As I read this whole thread with interest, one thing struck me, some said just use it and if it becomes a problem then deal with it then. I would think that a clever lawyer would perhaps find this very thread and use it as a proof that he had a suspicion that what he was doing could be wrong and yet did it anyway. Could or would this not be enough to sink him if it was found to be an infringement?

 

[jokerone]

As I read this whole thread with interest, one thing struck me, some said just use it and if it becomes a problem then deal with it then. I would think that a clever lawyer would perhaps find this very thread and use it as a proof that he had a suspicion that what he was doing could be wrong and yet did it anyway. Could or would this not be enough to sink him if it was found to be an infringement?

Ok, I'll have to eliminate all of my witnesses..

 

[PTravel]

The rule is simple. If the average person thinks they are hearing another song, then you have infringed.

Sorry, but that's completely wrong. You've just described subjective substantial similarity, which is only half of the substantial similarity analysis.

The defense is often that they did not borrow more than 7 notes? Oops...you were borrowing? Guilty. I worked with a musicologist for years in New York City in the field of advertising. She was called to testify in many well-known cases involving famus artists including George Harrison's famous case involving "My Sweet Love" So those are the facts. If the average person thinks they hear another song instead of yours, you have infringed.

Nope, not a fact. As I said, I've already described how infringement liability is determined. Incidentally, your friend the musicologist offered testimony to support the other half of substantial similarity analysis, i.e. objective substantial similarity.

Here's what are NOT defenses: You have no money, you didn't make any money, you gave credit, you only used 7 notes, other people do it all the time, you didn't mean to (George Harrison). Here's what cannot be copyrighted: chord changes,

That's not necessarily true.

titles,

Correct.

and strings of words that are common to the language. ("I love you so much" cannot be copyrighted.)

Not necessarily true.

The infringement occurs on a string of notes in a lead line familiar to the average person as another protected song.

Dead wrong.

Also, under the new laws you do NOT have to register the song lead line. Once written it is protected. (registering provides you with a start date for punitive damages as well as protectin from being sued yourself by someone who wrote theirs at a later date.)

Also wrong. First, I don't consider a law that was passed in 1978 to be "new." However, you are wrong about the effect of registration. First, registration is a pre-requisite for suing for infringement -- if it's not registered, you can't go to court. There are some exceptions with respect to Berne-convention works created outside outside the US, but otherwise that's the rule. Second, date of creation is relevant only to the question of access to the original. Independent creation is a complete defense to copyright infringement.

Sending yourseof a letter doesn't do anything,

Correct.

and to produce a CD recording of a cover you need to acquire the mechanical licensing rights through Harry Fox based on the number of CD's produced.

Correct.

You cannot use the exact same arrangement either. The intro and outro and the AABD verse, chorus, bridge order must be changed.

Also incorrect.

Good Luck,
Rod Norman
Engineer

You'll need luck if you take legal advice from an engineer.

Paul N. Tauger
Intellectual Property Lawyer

 

[PTravel]

As I read this whole thread with interest, one thing struck me, some said just use it and if it becomes a problem then deal with it then. I would think that a clever lawyer would perhaps find this very thread and use it as a proof that he had a suspicion that what he was doing could be wrong and yet did it anyway. Could or would this not be enough to sink him if it was found to be an infringement?

Yep. It would constitute evidence of intentional infringement. I'm litigating a trademark case right now where chat room statements may be relevant.

 

[lipservice]

Wow - the good, th bad and ...

From the original
"Hogans Heroes" is really a take on a children's rhyme - Elvis used the same theme with his own arrangement in Wooden Heart

Not the same.

There'd be examples of court analysis strewn about the web - the legal comments from lawyers would be wisely filed and read twice to get a grasp
It isn't just noted and chord changes but also the feel (subjective similarity as labelled by the lawyer, the "groove" as labelled by the artist)

John Fogerty (don't spell correct to yawn forgery) once was in court for copy if one of his own songs (different record labels) if I am not mistaken. Might be worth examining that for how the groove alone is not enough.

Remember above all this is a legal system, not a justice system. If you take something that seemed cool and cry "no fair" in court you don't understand the process. Note that even if you "win" you will have to pay your lawyer and in time and stress

People copy inadvertently - we don't always remember where we got a rhythm. It is also possible to produce the same melody by original means - it may be worth asking others if they heard a song before or if it is original

I'm a fool but I don't play one on TV

The copyright law does not specify a certain number of notes that constitutes plagiarism. It simply says the there is access to the original work and that it is "substantially similar" to the original work. There is the parody exception, which is what made a career for Wierd Al!

 

[tmac603]

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.

Truncated Quote.

Thanks for all the info, very informative as a 52 year old life long musician song writer I was always under the impression it was 7 notes as some have mentioned in this thread. I think maybe I should sue Pat Benatar for ripping off my song Don't Tell Me View attachment DontTellMe.mp3View attachment DontTellMe.mp3 with her Hell is for children? I was shopping that song in the late 70's and wham Pat came out with Hell is for children in 1980... I had a lot of interest from a few A&R's to buy this song at that time. HMMMM makes one wonder

 

[BKKJohn]

Not an issue of notes

So lets say you are writing a homage / parity song about Star Wars, or Star Trek, or Shaft, Towering Inferno, Gilligan's Island, etc.

How many notes in a row can you lift before you have legal problems?

5?

If you create a "derivative work" - a song or whatever that is clearly derived from another song, you need permission from the original author to publish it. Parodies are an exception, considered "fair use".

If you SAMPLE an audio recording, even for one second, you have to get a license (pay money to the copyright holder).

 

[PTravel]

If you create a "derivative work" - a song or whatever that is clearly derived from another song, you need permission from the original author to publish it.

When you create a derivative work, you need permission from the owner of the copyright, which may or may not be the original author.

Parodies are an exception, considered "fair use".

And, as I've explained, parody is a very complex doctrine. Why doesn't anyone read this thread before posting?

If you SAMPLE an audio recording, even for one second, you have to get a license (pay money to the copyright holder).

Sigh. Not necessarily.

 

[Chili]

Why doesn't anyone read this thread before posting?

It is a good thread and the person asking the questions appears to be reading the answers.

If you were to write a tutorial or summary on the whole copyright/licensing subject, I would stickie that at the top of this section. There are a lot of misconceptions out there and maybe copyright.gov doesn't do a great job in yielding answers.

 

[Btyre2013]

the answer is simple really, write your own music and then there's nothing to worry about, but NO people are too lazy to pick up a guitar or learn to play a piano.

 

[MrUserNameIV]

Aren't parody and satire fair use?

 

[PTravel]

Aren't parody and satire fair use?

Read the thread.

 

[PTravel]

It is a good thread and the person asking the questions appears to be reading the answers.

If you were to write a tutorial or summary on the whole copyright/licensing subject, I would stickie that at the top of this section. There are a lot of misconceptions out there and maybe copyright.gov doesn't do a great job in yielding answers.

Good idea. I'll work on something as I have time.

 

[XploZiveToyz]

I just now started reading this thread and must say that if this was a fight instead of a discussion, ResidentExpert would be getting the shit kicked out of himself!

 

[XploZiveToyz]

I just now started reading this thread and must say that if this was a fight instead of a discussion, ResidentExpert would be getting the shit kicked out of himself!

After reading the whole thread I find out it was only Barry. Figures!

 

[Johnny Don't!]

I'm glad to see an actual lawyer who works in the copyright infringment field has contributed here, because I've been in the music business for over 20 years; studied Legal Aspects of the Music Business at Berklee College of Music; and I still don't have a solid grasp on what constitutes infringement. And he is 100% correct when he says there are no laws regarding plagarism; it's only a term that's applied after infringement has been proven.

I'm also extremely glad he pointed out that his experience only deals with US law, because there are quite a few UK users on this site and their copyright laws are entirely different. For example, I recently read that Sting makes over $600K a year (that's $2K a DAY) on royalties from "Every Breath You Take." In the US, copyright as it applies to music compositions only can be claimed for melodic content. However, there is precedent in the US which allows for distinctive parts of a recording to be claimed as authorship. This obviously cannot be applied to chord structures/movements; otherwise, all the songwriters from the 50's that write countless songs in 6/8 following the I-VIminor-IV-V7 pattern (which was a TON of them) would've been sued left & right. But if there is a lick or a riff that easily identifies and is clearly associated with a certain song, then copying that riff would be a very bad idea stateside.

In the UK, Andy Summers (the guitarist from The Police) wrote & performed the distinctive guitar riff that is instantly recognizable as "Every Breath You Take." But he has no legal grounds to claim some of the ridiculous royalty money that Sting makes every single day, because that song is registered in the UK. If it was registered in the US, Sting would most likely be splitting those royalties with Summers, as he would have legal precedent to sue for contributing the guitar lick, which was in fact the only part of that song to be illegally sampled by Puff Daddy for his remake in tribute to Notorious B.I.G., "I've Been Missing You." That is one of the biggest-selling singles (if not THE biggest) in US history, and guess what? Puff Daddy gets NONE of it because he "forgot" to ask for Sting's permission to use the sample. Big mistake.

Thanks to the lawyer for his well-informed contributions.

 

[BroKen_H]

This may be the wrong place to ask, but I've noticed at my work that there is about a two hour loop of about three dozen songs. Same songs play day in/day out. Probably 12 times a day. In the US, is my employer (retail) responsible for royalties for each public performance?

 

[mjbphotos]

This may be the wrong place to ask, but I've noticed at my work that there is about a two hour loop of about three dozen songs. Same songs play day in/day out. Probably 12 times a day. In the US, is my employer (retail) responsible for royalties for each public performance?

He's probably paying a service for this or does he have an old auto-reverse cassette deck going? Are people coming to your place for entertainment, or is it background music? If its background music, no license needed.

 

[Chili]

If its background music, no license needed.

Ooops, that's not true. If it's played to the public, it definitely needs a license or royalty payment; even through a walmart speaker. The only time you don't need to pay a royalty is when it is for private listening. Walmart is absolutely paying to play those songs, probably through a provider like Musak.