32 How a Musical Work Copyright Infringement Case Works
In this part of the book, we will discuss what happens when the owner of a musical work copyright believes her exclusive copyright has been infringed. (Note that we are talking here about the song copyright (the musical work), not the sound recording copyright. We will turn to the infringement of sound copyrights in the next part of the book.) We will first go over the legal requirements of a musical work copyright infringement claim and in subsequent chapters we will dive into how the courts have developed the legal theories around music plagiarism and where they stand today.
Federal law.
The United States Copyright Law is a federal, as opposed to a state, statute. Therefore, legal claims of copyright infringement must be filed in federal, as opposed to state, court. The lower federal court where a claim (also known in legal terminology as a “complaint”) would be filed is known as the Federal District Court. The District courts are located in each state and many states have more than one District court (depending upon the population of the state). There are currently 94 federal judicial districts.
District courts can hear both criminal and civil cases. Civil cases are those where a plaintiff sues a defendant, typically for monetary damages or some other court-ordered relief; criminal cases are those in which the government prosecutes a defendant for a misdemeanor or felony, with the potential penalty being a fine, parole, or a prison sentence. The District court is known as a lower court or trial court, as opposed to an appellate court, because the parties in this initial “court of first impression” play out their dispute through all the phases of litigation. If a party wishes to appeal the verdict reached by the federal District court, they will then make that appeal to a federal Circuit Court of Appeal. There are nine Federal Circuit Courts of Appeal, plus a D.C. Circuit Court of Appeal for special claims involving the federal government itself. Finally, if a party wishes to appeal the ruling of a Federal Circuit Court of Appeal, they will make that appeal to the United States Supreme Court. The Supreme Court may or may not choose to hear an appeal, depending upon whether the court believes the case presents a pressing issue of federal law that the Circuit Court of Appel did not settle.
Copyright infringements of a musical work copyright are nearly always civil cases, a lawsuit filed by a plaintiff against a defendant, rather than the government against a defendant. The plaintiff filing the complaint typically alleges a copyright infringement by another party (the defendant). However, that is not always the case, as sometimes the plaintiff wishes to preemptively prove that they have not infringed upon a copyright when they have been alleged to have have done so outside of court (such as in the media) and wish to get the upper hand by filing first. We will study a famous recent example of this below that backfired badly on the plaintiff. But because that is not typical, for the rest of this section I will refer to the plaintiff as the party who owns the musical work whose copyright has allegedly been infringed.
The Copyright Act also provides that a criminal case may be brought by the federal government in cases of infringement involving a person who willfully infringes a copyright (a)for commercial or private profit, (b) by distributing $1,000 worth of copies of phonorecords within 180 days, or (c) by uploading to the internet for public access a copy of a copyrighted work being prepared commercially. Criminal copyright cases rarely occur in in musical work plagiarism disputes, and are more likely to occur in piracy cases involving the sound recording copyright.
Phases of a Civil Law Suit.
Civil lawsuits begin when a party files a “complaint” with a court, and then “serves” the complaint on the defendants (in person or by mail). This begins the “pleading” phase of the suit. In the complaint, the plaintiff specifies her name and address as well as the names and addresses of all the defendants they wish to name in the case. The complaint also sets forth the nature of the legal claim being made (in this case, copyright infringement), as well as a statement of all the alleged facts that support the claim. The plaintiff will also state their “standing to sue” (explained below) as well as why the particular court they are using is the correct “venue” for this claim (both because of the legal nature of the claim as well as the geographic location of the parties or alleged infringing activities).
After receiving the plaintiff’s Complaint, the defendant(s) will then have 21 days (in a federal court) within which to file their “Answer” to the Complaint. The Answer gives the defendant an opportunity to refute the plaintiff’s statements of both fact and law, or to make arguments as to why the court has no jurisdiction over the defendant or is the improper venue for the claim. Often, after receiving the Answer from the defendant, the plaintiff will then file an “Amended Complaint” to make any legal adjustments to their claims based on the defendant’s Answer, or to add or remove one or more defendants to the list.
During this pleading phase, the defendant may file a “Motion to Dismiss for Failure to State a Claim,” which asks the court to dismiss (terminate) the plaintiff’s law suit due to some fatal legal flaw in the plaintiff’s complaint. For example, the defendant might claim that the suit should be dismissed because the plaintiff does not actually own the copyright in question or because the defendant is not the person who engaged in the acts the plaintiff alleges to have been committed. If it is clear to the judge that the complaint is flawed in a way that the plaintiff cannot remedy by filing an amended complaint, the judge may dismiss the suit at this stage.
After the pleading phase has concluded, the parties then begin the “discovery” phase of the litigation. Discovery constitutes the fact-finding phase of the lawsuit, during which the plaintiff and defendant send requests to each other for documents relating to the law suit; “interrogatories,” which are lists of questions that must be answered in writing; and requests for “depositions,” which are interviews between the parties conducted by lawyers from the opposing side. Depositions constitute sworn testimony, which can result in perjury charges if the court finds the party being deposed not to have been truthful. Due to their being sworn testimony, a court reporter transcribes the statements made at a deposition and they are typically also video recorded. There is no judge present at a deposition, but, as in a court room, lawyers can “object” to questions asked during a deposition so that a judge will later have a basis for limiting the ability to use answers to those questions in the trial. The discovery phase of a case can last months, or even years in more complex cases.
After discovery, the case moves to the pre-trial “motions” phase, during which the parties make various motions to the court to settle various legal and evidentiary issues that have arisen in the discovery phase. One or both of the parties will commonly file a “Motion for Summary Judgment,” in which a party will ask the court to decide the case in their favor without a trial based on established law and the existence of certain “stipulated” or mutually agreed facts. Cases will often be concluded because of these summary judgements when a judge decides that, after the initial pleadings and discovery, there are no remaining issues of law or fact remaining to be argued during a trial that will be dispositive to the outcome, so the judge can decide the outcome without a trial. When the judge rules on a motion for summary judgement, that ruling will often form the basis for the losing party to appeal the judge’s decision, as appellate courts are more likely to overturn a judge’s ruling than a decision by a jury. Other motions typically filed at this stage include those aimed at limiting what evidence the jury will be allowed to see or hear, which witnesses will be allowed to testify, and defining the scope of any expert testimony (a very important part of a music copyright case).
After pleadings, discovery, and rulings on various motions, the judge will typically press the parties to settle their dispute without a trial. Settlement talks may have already begun, but they will certainly accelerate with pressure from the judge to avoid the time and expense of a trial. Recent statistics indicate that about 95% of all civil cases will settle before trial. The costs of going to trial are enormous and at this point in the case (just before trial), the evidence and legal arguments that will be disputed at trial are well-known by both parties. So, there is a great deal of time, money, stress, and uncertainty that both parties can avoid by coming to an agreement before trial.
Given that so many cases settle before trial, we typically do not know the outcome of most civil disputes because settlements are a private matter that are typically not disclosed publicly. This is true of the vast majority of music copyright cases as well: we know that an infringement claim was made, and we can make our own guesses as to how the case was resolved, but because the cases often settle without a trial, we never know for sure how much money changed hands in the settlement.
If the case does go to trial, then the familiar courtroom drama ensues: opening arguments, calling witnesses to the stand to be examined and cross-examined, closing arguments, jury deliberations (unless the plaintiff has decided on a bench trial, that is without jury), the reading of the verdict by the jury foreperson, and lastly the penalty phase where the jury awards damages (or other court-ordered relief) if the plaintiff has prevailed.
Ownership of Copyright Claim; Authorship; Standing to Sue
The plaintiff in a copyright infringement suit must make and prove two factual claims: (a) That she is the owner of the copyright she claims has been infringed, and (b) that the defendant impermissibly copied the work. Proving these seemingly simple claims in court often involves a very difficult and complex process, so we will treat them separately and fully, starting with the need to assert and prove copyright ownership.
In some cases, particularly when the plaintiff is the original creator (the “author”) of the musical work and has a copyright filing in her name to prove it, the plaintiff can easily prove ownership of the copyright. But complications can arise. One complication involves whether the musical work copyright claimed by the plaintiff actually constitutes a copyrightable musical work. The author of a copyrighted musical work must not only come up with the idea for the work, but actually create the work by fixing it in some medium (typically by writing it down or recording it). Remember, copyright attaches to the particular expression of an idea, not the idea itself. One cannot claim copyright infringement because someone else copied their idea for a work; the copying must be of the actual work itself, not just the idea. So, the plaintiff must show that she is the person who created a particular musical work by writing it down or recording it.
If two or more authors each make substantial, independent, and original contributions to a work, they may share the copyright in that work jointly, but only if they intend to do so. Joint copyright owners do not have to have contributed equally to a work to be joint owners, so long as each contributed substantially to the work such that their contribution could be the basis for an independent copyright. Merely contributing an idea to the work is not sufficient to be a joint owner; each joint owner must contribute to the expression of the ideas in the work. As joint owners of the copyright, any single owner or any group of joint owners may initiate a claim of copyright infringement; it is not required that all joint owners act together. A joint copyright is different from a copyright that is jointly owned by virtue of some assignment of a partial interest in a copyright. A joint copyright is one owned by two or more authors of the work, but if a single author assigns part of their copyright to another person who was not an author of the work, the copyright is jointly owned but the work still has only a single original author.
These complications of copyright ownership often arise in copyright infringement lawsuits. For example, the plaintiff may have inherited the copyright from a deceased parent or other relative and will thus have to provide evidence that they are the rightful heirs of the copyright. There may be competing claims to a copyright that will cloud the plaintiff’s ownership. For example, the plaintiff may have obtained the copyright by a contractual assignment from a previous owner, so the chain of ownership through various contracts might have to be proven in the pleadings. Even if asserted successfully in a complaint, the plaintiff’s ownership of the copyright might continue to be an issue throughout discovery and even the trial itself, as the defendant attempts to argue that the plaintiff does not own the copyright and thus lacks the standing to bring the suit.
If the copyright of a work is shared among two or more persons or entities, then any one of the people who own any share of the copyright may file a complaint for infringement. There is no requirement that all of the copyright owners in a particular work file a claim jointly.
To show standing to sue for copyright infringement, the plaintiff will also need to prove that the musical work in question has been registered with the U.S. Copyright office. However, there is no requirement as to when that registration has to have been made, as long as it is made by the time the plaintiff files the complaint. Recall that there is no longer any legal requirement to register a musical work (or any other copyrighted work) in order for that work to be considered protected under copyright laws. A work is considered protected under U.S. copyright law the moment it is “fixed in any tangible medium of expression.” But in order to file suit to enforce the copyright, the work must be registered before the complaint is filed.
Works for Hire.
Whether or not a musical work constitutes a “work for hire” may also complicate the plaintiff’s ability to showing ownership of a copyright. Recall that a work for hire is a creative work (of any medium) produced by an employee at the direction of an employer. While some relationships are easily classified as employee/employer, many fall into a grey area where it is not clear whether the author is acting as an employee, in which case their creative output is a “work for hire,” or whether they are creating the work under their own authorship. The employer owns the copyright to a work for hire, not the employee who created the work, so this distinction becomes critical for determining who can sue for a potential infringement of the copyright.
If no clear documentary evidence exists showing whether a work is a work for hire (such as when a contract explicitly states as much), the court will look at the circumstances of the relationship between the author and the employer and whether the work was made within the scope of the author’s employment. The following characteristics will weigh in favor of the work being treated as a work for hire:
- It is the kind of work the employee is employed to create;
- It occurs substantially within authorized time and space limits; and
- It is made, at least in part, for the purpose of serving the employer.
Certain works are typically considered works for hire unless the contract specifies otherwise, such as film and television scores, advertising jingles, corporate audio logos, and other works where a corporate employer clearly directs and benefits from the musical work. As stated above in regards to record contracts, some record companies will attempt to have artists agree that their compositions created as part of a record contract are works for hire, but most recording artists will resist such a level of control and ownership of their creative work (though they will still likely be required to assign ownership of the master recording right to the record company as part of the contract).
Statute of Limitations.
Another consideration that the plaintiff’s complaint will address is the copyright statute of limitations, which sets at three years the maximum amount of time that a civil copyright violation claim can be brought after the date of the alleged infringement. For the purpose of a musical work copyright infringement claim, the three-year period begins on the day the infringing (plagiarizing) musical work is distributed for sale. However, applying this seemingly simple rule in copyright cases involves an important complication: Each successive individual act of infringement starts (or “tolls” in legal terminology) the three-period anew. The following example will help clarify that complication: If a recording artist, represented by her record company, distributed an album containing an infringing song on January 1, 2000, the copyright holder of the song alleged to have been improperly copied would have until January 1, 2003 to file a claim for that infringement. However, if the artist also distributed a single of that same song on January 1, 2002, the statute of limitations for that separate infringement would enable a claim to be filed until January 1, 2005. Similarly, if the artist released a Greatest Hits album containing the song in 2010, claims related to that infringement would be allowed until 2013. We can see that, at least for successful pop songs that may get re-released on new formats and repackaged into new compilations over many successive years, the statute of limitations will rarely, if ever, prevent a civil copyright claim from being brought. Further, if the song has not been redistributed, rereleased, or repackaged after three years, then the value in bringing a copyright suit is likely to be so low that few plaintiffs would bother.
The advent of internet streaming has further complicated the statute of limitations for musical works. If the defendant’s infringing song can be streamed on Spotify, for example, any act of streaming the song represents a distribution of that song that can start the three-year limit. That creates a situation where it can reasonably be said that for musical works available on the internet, there is effectively no statute of limitations while that work is available.
Independent Creation; Proving Defendant’s Access to the Copyrighted Work.
We turn now to the second foundational factual basis for making a copyright infringement claim: proving that the defendant actually copied the plaintiff’s work, rather than having created the new work independently. Only in rare cases will a plaintiff have direct evidence that a plaintiff copied a previous song as part of their work process. Songwriting typically involves a solitary process that has no witnesses and leaves no trail of evidence as to how it occurred. So, short of an admission from a defendant that they actively copied another work, there will rarely be other evidence of copying. Courts therefore have allowed plaintiff’s to prove improper copying by showing that (a) the defendant had “access” to the copyrighted work before the alleged copying, and (b) that the two songs are “substantially similar.” (We will address the more complicated issue of “substantial similarity” below.) To put all this another way, the courts have come up with a general principle that “independent creation (of a work) is a complete defense to copyright infringement.” Sometimes, two people will come up with very similar works independently and that is not in itself proof of infringement — there must be proof of actual copying of the preexisting work.
This brings us to the concept of access: If the defendant can cast reasonable doubt to the court or jury that they ever heard the musical work in question, then the infringement claim will be severely undermined. How could a defendant have improperly “copied” the work in question if they never heard it? A musical work that happens to sound nearly identical to a preexisting copyrighted musical does not infringe the author’s copyright if that similarity occurred by coincidence, or just because the two songwriters happened to come up with the same work independently. The plaintiff must prove that their preexisting work was the source of inspiration (either consciously or not — there is no need to prove intention) for the new, infringing work.
Successful plaintiffs typically prove access through one of two routes: (a) the plaintiff can show a particular chain of events through which the defendant would likely have heard plaintiff’s work, such as the plaintiff having sent a copy of the song to the defendant or the defendant having been present during a performance of the work; or (b) the plaintiff can show that their work had been played on the radio or other mode of widespread distribution to the extent that the defendant must be presumed to have heard it. The facts supporting either of these claims will have to be confirmed during the discovery phase through interrogatories or in a deposition — “Do you remember receiving a demo recording of plaintiff’s song in the mail in January of 2017?” Or, “ Were you in the habit of listening to pop radio during the summer of 2015?”
One other unusual route a plaintiff can use to show access in the absence of any other evidence is a “striking similarity” between the plaintiff’s and defendant’s works. Even if the plaintiff cannot provide direct evidence that the defendant had access to plaintiff’s musical work, a striking resemblance between the two works, much more than even the “substantial similarity” discussed below, then the jury could infer from the high level of similarity that the defendant must have had access to plaintiff’s work.
Some courts have articulated an “inverse ratio rule” to link the level of access shown by the plaintiff to the amount of additional evidence required to show similarity between the works to prove that some copying was involved. The more evidence of the defendant’s access to the preexisting work the plaintiff can show, the less similarity between the two works will be required to demonstrate that the defendant copied from the plaintiff’s work. If there is little evidence of access, the plaintiff will need to show that the two works are very similar to convince a jury that the defendant copied the plaintiff’s work. Conversely, if there is irrefutable evidence that defendant had access to plaintiff’s preexisting musical work, then only a minimal similarity between the two could be sufficient to show that defendant copied plaintiff’s work.
Originality and Non-infringing Copying.
Once the plaintiff has shown that the defendant copied her work, the plaintiff will then have to prove that the degree of copying constitutes copyright infringement. Not all copying constitutes copyright infringement. Recall the purpose of copyright: to protect a particular expression of an idea, not the idea itself. Ideas cannot be copyrighted, only the particular manner in which those ideas find expression in works. Copyright only applies to the original elements of a work; the non-original elements of a work remain in the public domain and do not lose that status just because an author incorporates them into a new work. Only an author’s original expression of ideas in a particular work enjoy copyright protection.
For example, one could not copyright the idea of a song using the 12-bar blues harmonic progression. However, one could copyright a particular, unique use of the 12-bar blues progression in the form of a specific song (a particular set of lyrics with a particular melody, for example). But even after a songwriter the 12-bar blues progression to create a new, copyrighted song, that sequence of chords will remain in the public domain for another to use in coming up with another original expression using those chords. The original part of that new song that enjoys copyright will reside in the particular combination of lyrics, melody, rhythm, etc., not the 12-bar chord progression. Some degree of copying is to be expected in nearly every creative endeavor, as each artist cannot be expected to invent the materials of their craft wholesale from scratch. In the case of music, musicians learn chord progressions, scales, riffs and conventional figures, typical rhythms, etc., that many songs share in common. Those common elements remain in the public domain.
Similarly, the use of common melodic fragments (moving down a scale from the 5th degree to the tonic), or a trill on the seventh scale degree, are so common that they could not possibly be considered original elements of a composition. With lyrics, there are also certain phrases and words that are so common to song lyrics (“let’s rock,” “I love you,” “I can’t be satisfied,” etc.) that they fail to rise to the level of originality required to form the basis for copyright infringement. There are countless other examples of these conventional musical elements that cannot form the basis for a copyright infringement suit.
So, a plaintiff must show that the defendant impermissibly copied the elements of a preexisting composition that constitute the peculiarly original combination of musical elements that make one song unique and distinct from another. As we will see, that line is often difficult to discern, and it has shifted significantly in the plaintiff’s direction in recent years.
Burden of Proof; Standard of Proof
As in nearly all other civil cases, the burden of proof in a copyright infringement suit rests with the plaintiff (the party typically trying to prove that another party impermissibly copied their work). The level of proof required is a preponderance of the evidence. Preponderance of the evidence means simply that the evidence in favor of the plaintiff’s claim is more convincing than the evidence against it. It does not mean that there is quantifiably more evidence (measured numerically), but that the evidence that does exist is more convincing. There could be only one very convincing piece of evidence favoring the plaintiff’s position, but many unconvincing pieces of evidence in the defendant’s favor, but the plaintiff would still have the preponderance of evidence in her favor.
In criminal cases, the prosecution must show the defendant’s guilt “beyond a reasonable doubt,” which requires a far greater weight of evidence than a preponderance. Note also that in civil cases we do not use the terms “innocent” or “guilty” to describe a defendant. When a jury determines that a defendant has committed copyright infringement, we describe them as being “liable” to the plaintiff for the payment of whatever damages are assessed or other equitable relief (such as an injunction). “Guilty” is a verdict reserved for criminal cases.
