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Is it possible to be sued for copyright infringement of a…

Is it possible to be...
Is it possible to be sued for copyright infringement of a song if a songwriter thinks a verse sounds similar? My next question is, is being sued for copyright infringement of a song possible as long as the judge thinks it “sounds similar”? This does not make sense because how can it be claimed that someone owns the success of another song or someone’s song because of similarity? There are so many other factors that contribute to the success of a work other than a song sounding similar, yet, it can also be argued that similarity actually can create success and familiarity throughout music history and it has always been this way. Thank you in advance!
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Answered in 31 minutes by:
3/16/2018
socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 39,771
Experience: Retired
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Is it possible to be sued for copyright infringement of a song if a songwriter thinks a verse sounds similar?

A: Yes. However, the similarity must be "substantial," i.e., obvious to an ordinary person on a jury -- because it's the jury that ultimately decides the issue. So, it's not a simple question for a songwriter, because the cost of litigating a copyright infringement action is very high ($25,000-$250,000).

My next question is, is being sued for copyright infringement of a song possible as long as the judge thinks it “sounds similar”?

A: The judge can only determine that there is "no genuine issue of material fact" concerning the alleged infringement. Only when alleged infringement is practically verbatim/identical to the original can a judge make that determination. IOtherwise, copyright infringement of a musical composition must be decided by a jury.

This does not make sense because how can it be claimed that someone owns the success of another song or someone’s song because of similarity?

A: Answered above.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Customer reply replied 1 month ago
I will be sure to do the rating. How “obvious” should it be to the jury? Obvious in the sense of comparing both the works “sonically” all the way through? Or playing a “certain” section of the song? Also, since certain genres such as folk, blues, EDM and certain pop styles are based on their similarity, just as rhythm, chords and structure, the question is, how dissimilar should songs be from one another when the audience is expecting some degree of similarity in each track.

The jury is a random pool of individuals from the community in which the legal action is filed. In the typical community you would be very lucky to find more than 10% of the population who can carry a tune, much less determine substantial similarity. What typically happens is that each party hires an expert witness to talk about the similarity or dissimilarity between the original and alleged copy, and the jury is entitled to take the expert's opinion into consideration.

In really high profile cases, you might see a very famous musician or entertainer as an expert witness. But, usually, it's an academic (music historian). The bot***** *****ne, however, is that the jury makes the decision based upon their collective knowlege -- and it's very difficult to know how a case will resolve.

In the vast majority of cases, the parties settle long before trial, because the litigation costs end up devouring any possible damages (except where the song is ridiculously popular or the theme to a high rating tv show or movie).

If you're a musician, then you know that were people to sue based upon chord progressions, 75% of all compositions would be infringing, because they are all based upon a 12-bar blues! So, the similarity must be a lot more than merely chords or rhythm, etc. It's got to be obvious to the typical person dancing to a wedding band! <wink><wink>

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

Thanks again for using Justanswer

socrateaser
socrateaser, Lawyer
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Satisfied Customers: 39,771
Experience: Retired
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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