Copyright infringement

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Copyright is owned exclusively by the songwriter/composer who has the right to assign his copyright of his song to a publisher. A songwriter/composer's revenue comes from five sources: Performing rights royalties, mechanical royalties, synchronization rights, licensing and sheet music or folio.

The publisher's job is to get the song to the masses through television, radio, film and recordings. So the publisher's role is to administer the copyright by reviewing new songs to determine the potential success of a song.

Ultimately, the publisher works to have songs 'exploited' or given exposure in as many markets and mediums as possible. The more songs are exploited, the more revenue-generating income accrues to the publisher and songwriter.

For a copyright to be infringed it must meet three criteria. First, accessibility or knowledge must be determined. Did the violator have access to the song, for example, by hearing it or by buying a recording?

Second, consciously or unconsciously copying a copyrighted work is another test. An example of consciously copying is criminal copyright infringement or piracy. Think Napster and the whole debate about music file sharing on the Internet. Copying without permission and (usually) selling another's copyright work is a serious criminal offence.

A classic example of unconsciously copying is the famous George Harrison infringement of the Chiffons "He's So Fine" hit in Harrison's "My Sweet Lord" song.

Third, this example also met the substantial similarity test because the melody was recognizable.

The Copyright Act does not protect performances of songs. It is permissible to imitate major artists and record it, but the recording is protected.

Think of Andre-Phillipe Gagnon, internationally famous Quebecois comedian who performs songs by celebrities like Mick Jagger and others. A parody of a song as in Weird Al Yankovic's 'Eat It" version of Michael Jackson's "Beat It" song is not in violation of copyright because permission has been secured with the publisher.

Fair use refers to a limited use of a copyrighted work. Music reviewers and critics often quote a few lines of a song to illustrate or make a point to support their view. Substantial use of the lyrics, however, requires getting permission from the owner or assignee, i.e. publisher, and paying a negotiated fee to use the work.

Providing the relevant credits, which are name of author and source, is mandatory. It is not considered a violation of copyright if you enjoy a CD in your home, but it is if you perform or play that same song or CD at a wedding without getting permission from the copyright owner.

Misleading the public through misrepresentation is another example of infringement. In this scenario, the public buys your CD because it believes it to be another person's work. That's where trademarks can also be violated. When you think of KISS or the Rolling Stones logo, what do you think of?

Ultimately, it is the responsibility of the copyright owner to prove that a copyright infringement has occurred. Initially, a letter of notice is sent to the alleged violator before making a claim in court. If it is determined that there has been a violation of copyright, the claimant may decide to negotiate a settlement out of court to recover damages.

The claimant may decide whether it is worth the cost of litigation, compared to the amount they might be able to recover out of court. If the court decides in favour of the claimant, it may serve an injunction to stop further infringement, seize the product, award actual damages or statutory damages depending on the specific case.

A songwriter can voluntarily waive or give up their copyright by signing a release. They sign away their rights for any future claims or compensation. This scenario can happen when a producer asks permission for a waiver for a recording compilation and proceeds go to benefit a charitable organization.

Another example is when a songwrite is approached at a music festival, concert, or powwow and may feel compelled to sign the waiver because the other artists have signed such a release. The songwriter is under no obligation to sign the waiver.

It would be prudent to determine, in advance, the advantages or disadvantages of signing waivers.

Enough said, more about music publishing and songwriter royalty administration in the next column. Until then, 'starving artists' should be vigilant about their work because, in effect, you may be waving goodbye to any potential royalties.

This column is for reference and education only and is not intended to be a substitute for legal advice. The author assumes no responsibility or liability arising from any outdated information, errors, omissions, claims, demands, damages, actions, or causes of actions from the use of any of the above.

Ann Brascoupe owns What's Up Promotions, a company specializing in promoting booking, and managing Aboriginal artists across Canada. She can be reached at abrascoupe@hotmail.com