Legal Blog

Music Copyright Infringement ABC and 123

"Hey, what a great song! Where have I heard it before. Oh. Wait. That's mine."

All artists work hard to perfect the mastery of their craft, and despite that hard work, all artists are vulnerable to theft of their intellectual property including copyright infringement. With music copyright infringement, it can be difficult to find out that your music has been stolen and presented as another artist's work - and it can also be financially and emotionally devastating. 

Case in Point

Let's look at the recent case of Kendrick Lamar and his 2017 hit LOYALTY. Yes, it's 2020 now, but intellectual theft, especially music copyright infringement, can take a long time to be discovered. In this case, a musician named Terrence Hayes alleges that not only was his copyright infringed, but that the entire song was stolen, altered, and then released as Kendrick Lamar's own composition. 

In the lawsuit, Hayes alleges that Top Dawg management, along with Josef Liemberg and Terrace Martin worked with Hayes and thus had access to the original 2011 song and the subsequent 2016 remix. Hayes alleges that the song was run through a synthesizer, slowed, and remixed with another song to hide the copying. The suit asks for substantial compensation. Nor is this Lamar's first time under fire for music copyright infringement. He's faced previous suits from Yeasayer and SZA for songs on Marvel's Black Panther soundtrack, with one dismissed and one dropped.

Music Copyright Infringement

Fair Use or Music Copyright Infringement?

Let's look at an hypothetical situation. You create and record a song, slap a video up on YouTube, dance to it on Tik Tok, put out an album, appear in multiple media, tour and perform that song. That song is associated with you. Now, 'fair use' laws are kind of sketchy. Basically, the law says that someone can use 10, 15, or as much as 30 seconds of a song without having to pay the person who created the song. However, the difference between theory and what happens in practice means that the law is typically only used to defend against a music copyright infringement lawsuit.

Fair use assumes the following conditions apply:

- The work is not in the public domain. Essentially all sound recordings prior to 1924 are considered to be in the public domain. 
- The work is protected by copyright. All sound recordings made after 1924 are considered protected. The earliest recordings will become public domain in 2067. 
- The work was obtained in a legal way, from a lawful source, and with the consent of the originator.
- The new work in which the obtained work is used is not for-profit or commercial use.
- The new work does not hamper the marketability of the used work.
- Small portions of the obtained work may be used, but not the whole of the obtained work, even if the obtained work is cut up into intervals within the new work. 

So you can see that there is a definite list of do/don't when it comes to derivative works with your music. These are the criteria that must be met before any successful challenge to use of your work can take place. 

What about Royalty-Free Music? 

"Wow! Free beats! Free grooves! I can use them anywhere for anything!"

Hold up. 

Royalty-free music is not a grab-and-go musical pinata. 

A royalty is a fee paid on an ongoing basis for commercial use of a work. For instance, software-as-service is a royalty, and so is a photograph that you might see in the newspaper. When you hear a song on the radio or from an 'official' YouTube channel, the artist receives a fee from the use of that work.  

Many artists create royalty-free music, but that does not mean it's free to incorporate into another work, or even free to use on a website. When an artist creates and publishes a royalty-free work, the work must still be obtained by lawful means and used in a lawful manner. This means that much like other types of intellectual property - like software, photographs, or digital artworks - it must be licensed to the user and approved for a specific use and is protected by copyright. The end-user may not pay royalties, but there is typically some kind of fee for use and a contract specifying what uses are acceptable. Even music offered for no fee typically has restrictions on how it may be used. 

If you have created and published a royalty-free work, and you find out that it is being used without payment or permission, then that is music copyright infringement. If you allow no-fee usage for non-commerical purposes and someone is using it for their business or using your work and presenting it as their own, then that too is copyright infringement. If another party took your work and sold it to a third party who then presented that work as their own, yes, copyright infringement again. If this has happened to you, it's time to do something about it.

What to Do?

It's a shock to find your work has been effectively pirated and used against your wishes, and even without your knowledge. Copyright is a straightforward law that protects the rights of the person or group that originated the work. If you find that your rights have been violated, you need an attorney on your side to help you pursue whatever actions that are needed to make you whole, and even injunctions to prevent further use of the work without your permission. You may be entitled to back royalties, damages, and other compensation for unauthorized use of your works.

Call Us Right Away!

At Johnson Dalal, we specialize in intellectual property law and litigation. Our attorneys specialize in intellectual property law including the laws involving copyright, trademark, patents, and trade secrets We are here to help you and all creators to get the justice you need and control over your works. If you've had your copyright infringed, then call the firm at (954) 507-4500 to get your rights and the protection you need!

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