Copyright law is intended to prevent copying, though there is no set standard for what is too much copying. However, not all copying is prohibited. Generally, a person is permitted to copy anything in the public domain and can make limited use of copying under rules of fair use.
Music that is not copyrighted is in the public domain and is free for anyone to copy. Also, songs published prior to the year 1923 are in the public domain and can be copied freely. Familiar chord sequences or instrument patterns are considered to be common elements of the language of music and are free for all to use because what makes a song protectible is the unique way that elements are combined or expressed.
However, these principles may not apply when sampling a distinctive drumbeat or vocal performance due to a special type of copyright known as a sound recording copyright. The main purpose of a sound recording copyright is to protect against the unauthorized copying of a recording (known as “bootlegging”) and unauthorized sampling (using part of a recording). Most sound recording copyrights are registered to record companies because they are the most concerned with bootlegging and sampling.
Copying a portion of a copyrighted work may be allowed if it qualifies as a fair use. Fair use involves commenting on, criticizing, or parodying a copyrighted work. Be aware that fair use can be difficult to apply because the standard is often subjective, meaning that the determination is highly personally and you may not know if you have gone beyond the boundaries of fair use until a judge makes that decision.
Copyright infringement happens when a song is copied, modified, or performed without the song owner’s permission. If the song owner did not authorize the use and if no legal principle permitted it, then the infringer can be sued for damages. The main question in such an instance is whether the song owner has been injured (whether he has suffered some financial damages because of the infringement). Because the purpose of an infringement lawsuit is to provide a remedy for the song owner’s injury, such a lawsuit should be filed only if actual damages exist.
In the music industry, the test for infringement is whether the songs are substantially similar. The measure to ascertain whether infringement has occurred is the importance of the part taken, not the amount taken. In an infringement lawsuit, a song owner has to prove that the other musical artists had access to the song and copied a portion that was protected under copyright.
If the song owner prevails, he is entitled to monetary damages: either the amount of money that the infringer received for sales of the record or the amount he would have received for licensing the song less gross expenses. If the song was registered prior to the infringement, the song owner may choose instead to receive special statutory damages. Regardless of whether the song was registered prior to the infringement, a song owner may be able to get the court to stop the infringer from further using the infringing song.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.