Understanding Copyright in Music (Part III): Copyright Infringement

Part I of this article discussed the different type of works and copyright rights in music. In Part II, we discussed different types of music licenses. In this final part of the article, we’ll discuss what happens when someone does not have a license to use the musical work or sound recording and the use is not otherwise allowed by the law. This is known as copyright infringement.

When is a Musical Work or Sound Recording Infringed?

Anyone who, without the authorization of the copyright owner, engages in an act that is covered by one or more of the exclusive rights of a copyright owner is an infringer of copyright unless:

1. The musical work or sound recording is not protected by copyright (for example, if it’s in the public domain); or
2. The act is permitted by an exception in copyright law.

In other areas of law, in order to be culpable, the actor must have had knowledge or intent to do the wrongful act. Not so in copyright. Copyright infringement is determined without regard to the intent or the state of mind of the infringer. In other words, it makes no difference whether the infringer knew what they were doing constituted copyright infringement. The only time that the actor’s state of mind may come into play is when a court is determining how much money in to award to a copyright owner in damages for the infringement.

How To Prove Copyright Infringement

Courts usually require a copyright owner to prove that they owned the copyrighted work, and the defendant violated one of the exclusive rights of the copyright owner. In a case where infringement of the reproduction right is alleged, since there is seldom direct evidence of the offending act, a copyright owner may prove infringement through circumstantial evidence establishing that: (1) the defendant had access to the original work, and (2) the two works are substantially similar.

It is not necessary that the entire musical work or sound recording be copied for an infringement of the reproduction right to occur, nor that the copying be literal. All that is necessary is that the copying be substantial and material and that protected expression is copied. Likewise, the similarity between the two works must also be a similarity of protected elements, not unprotected elements. For example, in music, this means that copying of common musical ideas like chord progressions or basic scales will not qualify as copyright infringement, but copying of more unique melodies might.

The portion taken by the alleged infringer must also be more than a trivial amount to qualify as infringing. In music, this issue usually arises in the context of sampling. In most instances, a license is needed to use a sample of another song in your song. Typically, sampling (without a license) is only permissible in very limited circumstances, where the quantity and quality of what is taken is considered to be insignificant. 

Remedies for Copyright Infringement

If one or more of the exclusive copyright rights of the owner of a musical work or sound recording have been infringed and the copyright owner wishes to seek monetary damages and profits, attorneys’ fees, and/or an injunction, they can initiate a lawsuit in federal court against the alleged infringer for civil copyright infringement. Before a copyright owner can initiate a copyright infringement suit in federal court, they must have applied for a copyright registration with the U.S. Copyright Office for the work at issue in the case and the Office must have rendered a decision om the copyrightability of that work by either issuing a registration or rejecting the application on copyrightability grounds. 

The various remedies for copyright infringement in federal court are available to copyright owners who registered their works in a timely fashion. These remedies are explained in detail below.

• Injunctions: In federal court, a copyright owner may seek a preliminary or permanent injunction to prevent or restrain the infringer from continuing the infringement. Courts often grant permanent injunctions where liability is established and there is a threat of continuing infringement.
• Damages: At any time before final judgment is rendered, a copyright owner may elect to recover either (i) actual damages and profits of the infringer or (ii) statutory damages (i.e., damages determined by the statute, here the Copyright Act). Actual damages may be awarded in the amount of the copyright owner’s losses plus any profits of the infringer attributable to the civil copyright infringement. Statutory damages are only available when the copyright owner registers their work with the U.S. Copyright Office either (1) within three months of publication of the work, or (2) before the infringement starts. Statutory damages in federal court may be awarded in an amount between $200 and $150,000 per work infringed, with the former available only for “innocent infringers” and the latter available in cases of willful infringement. Remember, intent is not necessary to prove infringement, but it is factored into a court’s analysis on damages. 
• Court Costs and Attorneys’ Fees: Federal courts have discretion to allow the recovery of full court costs by or against any party, including the awarding of reasonable attorneys’ fees to the prevailing party under certain circumstances. However, plaintiff copyright owners cannot be awarded attorneys’ fees unless they have timely registered their works with the U.S. Copyright Office.
• Impoundment and Destruction: Federal courts may order the impounding of infringing goods at any time an action is pending. As part of a final judgment, the court may also order the destruction or any other reasonable disposition of the infringing goods.

An Alternative to Federal Court—the Copyright Claims Board (CCB)

The Copyright Claims Board (CCB) is a voluntary alternative to federal court for resolving certain types of small copyright disputes. The total monetary damages that can be awarded by the CCB is limited and cannot exceed $30,000 in one case and $15,000 per work. The CCB also cannot issue injunctions. However, if the parties reach an agreement where one party agrees to cease a particular conduct, the CCB can include a requirement in its final determination that the party abide by the agreement to cease the conduct. As a general rule, at the CCB, parties must pay their own attorneys’ fees and court costs. The CCB is often used instead of federal court where the infringement is not a large amount and/or the copyright owner may not be able to afford the cost of litigating in federal court.

Conclusion

Obviously, there is much more that we could discuss when it comes to music copyright. After all, there are many books written on the topic. Hopefully, the information provided in the three-part series offer a strong foundation for you to understand your basic rights and how to license your music to someone and what to do if they use it without your permission. It may have also sparked an interest to learn even more about music copyright. 

If you’re still looking for more information, here are few additional resources from the U.S. Copyright Office that we’d recommend:

If that’s not enough, two other books you might find helpful include All You Need to Know About the Music Business by Donald S. Passman, which includes information about the legal financial and practical information about music copyright and is considered by many to be the industry bible on music copyright; and Music Money and Success by Jeffrey and Todd Brabac, which includes detailed information about licensing and royalties. 

And don’t forget to join the Copyright Alliance’s FREE Creator Membership to continue your educational journey on how to protect your creative work.