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Q&A: I Was Robbed!
By Duff Berschback - 06/05/2007 - 12:13 AM EDT


I wrote a song in 1983 and copyrighted it by sending it to myself by registered mail. I also sent the song to a few publishers. In 1985, a big name star had a radio hit that always sounded really close to my song. Recently, I compared the hit's lyrics from a songbook with my song, and I'm convinced the hit was taken from my song. The hit has almost the exact same name, the same specific theme, and a similar chorus and rhyme scheme. What should I do?


Oh boy. This area of the law is called infringement, commonly known as "someone ripped off my song". While each case really depends upon the particular facts, here is a bit of an outline of a copyright infringement case. An infringement plaintiff has really only two things to prove: 1) ownership, 2) copying. But behind these seemingly simple concept are (surprise!) some fairly complicated legal knots. Consult a competent attorney to untangle them.

As to "ownership", you've got to show original, copyrightable material, citizenship status, and compliance with statutory formalities. (Let me make one thing really clear: sending the song to yourself, registering a song, etc.. is NOT what gives you a copyright, although an unopened certified letter is excellent proof of the date of creation. As of 1978 in the US, simply FIXING your creation in a tangible medium grants you a copyright. What we're talking about here is ENFORCING the copyright.) As to citizen status, non-U.S. authors can sue in U.S. courts, but under more restrictive circumstances than U.S. authors. I leave that analysis for another day.

As to (actionable) "copying", there are really two ways to prove it (since not many plaintiffs are eyewitnesses to the copying). First, you can prove that the defendant had access to your work, and his work bears a substantial similarity to yours. "Access" is a legal term. It used to be that simply proving that you mailed your song to a publisher would suffice to prove access. But the courts have moved away from that standard, and now you have to show a connection between the recipient and the writer/artist who allegedly did the infringing. You can also prove access by showing your work was widely disseminated. "Substantial similarity" involves a musical analysis of the song--you take out the nonprotectable elements (like common pop/rock devices) and compare the rest. In many courts, it can also involve a looser "smell" (hear?) test. If you can't prove access, the second way you can establish copying is by proving "striking similarity", a really high standard (which in turn can be rebutted by defendant proof of independent creation).

One last point: why did you wait 16 years to bring this up? The statute of limitations for copyright infringement is 3 years. Copyright enforcement demands diligence. As ongoing infringement is a redressable "continuing wrong", you are not totally out of luck, but your damages will probably be limited by waiting so long to enforce your rights. And speaking of damages, that issue is for another column.


1. If you intend to make money from your copyrights, register them and police their use.

2. If you get wind of a potential infringement, act quickly.

3. For publishers, labels, artists, etc., have a clear policy in place for dealing with unsolicited submissions. Prepare a form rejection letter that states the policy and that the material was destroyed without consideration. Also, it's a good idea to document the creative process, which will support an "independent creation" rebuttable to a "striking similarity" claim.

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