As we have previously discussed, the owner of the copyright in a work has certain exclusive rights in that work. Anyone who violates the exclusive rights of the copyright owner is an infringer of that copyright.
To establish copyright infringement, you must establish that you own a valid copyright in the work and that:
- The work has been copied; and
- The copy is “substantially similar” to the protectable elements of the original work.
Courts evaluate “substantial similarity” using a quantitative and qualitative analysis. This analysis evaluates how much (quantitative) of the original work is copied, and whether the quality/character (qualitative) of expression is similar. Whether songs are substantially similar is often determined by a forensic analysis of the musical characteristics of each song.
Certain copying can be de minimis and not rise to the level required to establish substantial similarity. A use is de minimis if the average audience would not recognize the appropriation.
With respect to sampling in music production, courts are split on the application of the de minimis concept. Courts have found samples of less than 2 seconds in duration were illegal. In fact, in lawsuits involving sampling, courts generally focus on whether the sample takes the heart or significant part of the original song, so even very short samples can often be illegal. One court refused to apply the de minimis concept and simply proclaimed that you should “get a license or do not sample.” Other courts will apply the de minimis concept in sampling cases.
Copyright infringement is “strict liability.” This means that an infringer does not have to intend to infringe to be liable for infringement. Liability can also be imposed on others who induce or encourage infringement (“contributory”), or who profit from infringement while declining to stop it (“vicarious liability”).
Remedies for infringement include:
- Injunctive relief;
- Actual damages or profits;
- Fair market value if the infringer had secured a license or the infringer’s profits;
- Statutory damages (up to $150,000.00 for a willful infringement);
- Costs and attorneys’ fees; and
- In the event of a willful infringement, possible criminal penalties.
While music copyright owners have a great deal of control over how their musical works and sound recordings are used, there are some limitations that permit others to use copyrighted material without the approval of the copyright owner. An important limitation is known as the doctrine of “fair use.” In determining whether an unauthorized use is a “fair use,” courts look at four factors:
- whether the unauthorized copy is for commercial or noncommercial purposes;
- the creativeness of the original song that was copied;
- the amount of the song that was copied; and
- the effect that the unauthorized copy has upon the potential market for the original song.
Unfortunately, there are no bright-line rules that apply when assessing whether something is fair use. For example, it is a common misconception that it’s not a copyright violation if the individual doing the copying is not making any money, if the copy is branded as “Promotional Use Only,” or if the project is otherwise noncommercial. It’s also a common misconception that it’s not a copyright violation if you copy, for example, only 15 seconds or 4 bars of a song. Neither the noncommercial or promotional nature of a use nor the specific duration of a copy alone control whether something is fair use.
In the leading music fair use case, the United States Supreme Court found that 2 Live Crew’s version of Roy Orbison’s song “Pretty Woman” was a fair use due to the fact that the 2 Live Crew version transformed and was a parody of the original song. To be a parody, the Court made clear that the 2 Live Crew song was making fun of and commenting on Roy Orbison’s original song, and that it would have unlikely been a fair use if 2 Live Crew had just created a funny version of the song that was otherwise unrelated to the original song.
We will continue on the topic of copyright law in our next Music Law 101 post, in which we will explain a “safe harbor” for Internet service providers.
The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.