Copyright Infringement made Easy

A question I am often asked is “what must I do if someone else is using my song?”. Well, it all starts with a basic understanding of copyright laws, specifically when they relate to infringement.

Copyrights give the copyright owners a wide range of rights, such as the right to make a reproduction (a copy), the right to broadcast, make an adaptation (change) and so forth. If someone is using your copyright, perhaps they have changed it a bit to try hide the fact that they are using your copyrights, then that is still infringement. In those circumstances, you could argue that they have made both an adaptation, as they have changed your material, as well as a reproduction, as they have copied it. You would then sue them, as these are rights which are exclusive to you, the copyright owner.

I usually tell my clients to start by sending them (the infringers) an email to let them know that you know what they are doing, and ask them to stop. This can be done amicably and without lawyers. But sometimes people are cheeky and take chances, in which case you must then bring lawyers in. Keep in mind, that it will be costly – but if your copyrights are worth protecting, then you should protect them. Simple! For example, I know of up and coming photographer who takes lovely scenic shots. A company used one of his images without asking him. Now, he usually charges a R800 license fee to use the image. He told the company to please pay up, and the company took the image down (great) but refused to pay (not-so-great). Should he sue them? Nah – to hire a lawyer to claim R800 is pointless – you fighting on principle. I mean he would probably win, but at what cost,the image was already taken down.

Anyway, I digress – once you go to court, you must prove all the four requirements mentioned above. The last two are incredibly tricky – but as I said, if you have copyrights worth fighting for, then you shouldn’t hesitate to get a legal team who understand copyright law to help you.

Eminem beats the New Zealand national party

Ok, first up. Listen to this clip.

Thoughts? Well, you don’t have to be a copyright expert to know that it sounds a lot like Eminem’s “Lose Yourself”. Ah, but the New Zealand National Party thought they could get away with it because it isn’t the actual song being used. Someone else wrote the song for the advert, and it just happens to sound similar, so sue me. Erm, that is what Eminem did and won about R5.7 million in damages (NZ$600 000).

The judgment by the New Zealand High Court was just released yesterday (25 October 2017) and is about 130 pages long which is pretty long for a case. This case is a win not only for Eminem but for musicians all over the world. Most countries follow similiar copyright laws due to being part of international treaties. That means the New Zealand copyright laws are quite similiar to South Africa’s laws (a few minor differences here and there). So what the court found in NZ could be used in SA, which I am happy about as I fully agree with the reasons the court came to. The most important aspect which I took from the case and which I think is particularly relevant for composers, is that you can’t just take one or two parts of a song, i.e. guitar chords or melody, and change it a little in the hopes that it will sound different. What this court said was that you have to look at the song as a whole. Even if you change every element of the song but it still sounds like another song, then that could amount to copyright infringement.

Now this might sound obvious, but it isn’t. The elements of a song like guitar chords, drum beats, synth, tempo, genre, key etc. – these are not protected by copyright! Why, because otherwise there would be no music. Imagine if I told you that you can never play the chord progression C, G, Am and F.  If that were the case then about half of all  pop song would infringe on the other (see: https://www.youtube.com/watch?v=hLf6yXkYHmU). So by that logic, Eminem’s track has uncopyrightable elements. You can’t copyright the drum beat, you can’t copyright the guitar chords, the key, the tempo or the guitar rhythm and you certainly can’t copyright the high range of a piano where that little piano melody is played. So this is not looking good for Eminem so far, as all the elements that the NZ national party took are not really protected by copyright – but this is where the court came to a right decision, as the Judge said:

“I accept Dr Ford’s view [a musicologist], that the end result of putting the musical blocks or elements together, whether they are unremarkable or borrowed, is what makes the work distinctive . . . It is the combination of sounds, for instance, the way the staccato guitar and drum beat is combined with the other elements of the song, that makes it distinctive.”

This is why I say it is not only a win for Eminem, but for composers worldwide. Don’t think just because you changed some of the lyrics, and used different chords that you will get away that easy. Now I’m not saying you can no longer be influenced or copy elements from other artists, we all do it, just don’t copy the whole damn song! I think I should write a guide on how to legally ‘steal’ from other songs.

If you want to read a condensed version of the case (like seriously condensed) you can read the media version here:

https://www.scribd.com/document/362539686/NZ-High-Court-Media-Release#from_embed