another David & Goliath story

[WatchingPlanes]

Hi there,

I’m so glad I found this forum, just looking through the responses the quality of advice is fantastic. I’ve barely been on a forum before actually but have just been asked to help with one being set up for sleep apnoea – basically the neurological kind, because there’s no help out there right now...

Where do I begin? I’ve got myself in a spot of bother with a multi-million selling name artist after I approached him very openly and honestly, probably very naively as well, showing him evidence of what I thought must be a breach of copyright on my material. I specifically said I wasn’t after a credit or percentage of copyright, just an explanation. I even came up with some really positive suggestions for a spin on this story to help the artist (whom I admire) on the basis that there’s no such thing as bad publicity. I was stone-walled by his security so I said I’d have no option but to go public with it if I didn’t get a response from the artist. There was nothing back, so I posted a mash-up of his and my songs and videos on YouTube.

I was greeted with a very aggressive cease and desist from the artist’s solicitors telling me I was in breach of his moral rights and copyright and that I had been defamatory in my post because they could infer that I was saying he was in breach of my copyright (which I didn’t actually say), which he denies. Legal action was threatened (injunction, damages, costs etc.) unless I removed it, and so I did. One might infer they are afraid I have a point.

And so I need some advice on what to do...

It all started last year when a musician friend at work pointed out the lead single sounded like one of mine. To simplify things, I’m going to give these songs letters:

My first song, written 1990 = song A
My second song, written 1994 = song B
The artist’s song, released 2011 (brought to the studio 6 years ago according to the producer’s manager) = song C

There’s also my hybrid demos – the artist’s melody over my 20+ chords and vice-versa, together with 9 or 10 scenes from both videos that are similar or almost identical, amounting to some 2 minutes’ of the artist’s video.

It was song B my mate meant – and although I couldn’t really hear it, it got me thinking because:

1) I had tried to pitch song B to the artist in 2000 via a cousin in the Caribbean who I knew was a drummer, radio DJ and also worked as a voice-over man on radio and TV. I was hopeful because he had jammed with various name artists including the one in question, and was personal friends with one name artist. Sadly he died a few months before the artist released this single – despite having recorded his album some 5-6 years prior. I’ll never know whether my cousin actually got my song to the artist – but I’ve found an extremely strong connection via a third party (a session musician) who is almost certainly the missing link – although to be fair this song may have changed hands within the industry a few times (indeed I’ve even found a personal link via which the co-writer/producer of the track might have heard it, though there is no substance in this).

2) The 5-note melody of song C’s chorus was the same as that used in my song A, and both A and C use the same harmony too. This confused me until I remembered that A and B use the same chords at that point. When I wrote song B I wanted to use harmony – but the one I went for most obviously was basically song A’s tune, and so I left it out and found an alternative line. All three songs use the same word ending at the same point in the hook – a clear link illustrating B is derivative of A and a clue that B influenced C.

At home that evening I dug deeper and found the tempos of B and C were exactly the same. The chords and key were the same – and the genre/style was obviously the same anyway. When listening to C on YouTube I more than raised an eyebrow at the video similarities – yet it was the music that was noticed first. Could all this be coincidence?

I doubted the artist could have heard song A because I hadn’t recorded it. Song B was the one pitched and furthermore it had been on the internet along with the video since 2002. Yet because of the personal connection and video similarities, I tenaciously looked further into similarities between B and C.

Pretty soon I realised that the whole of the verse/bridge structure was more or less the same, though again there was no real chain of notes in common – it came close at one point but it was only a passing phrase and not a substantial hook, and the harmonic setting was different.

Essentially what I mean is that with very little manipulation (necessary because of different key areas that arise when certain chord substitutions were made by the artist’s re-write) the respective melodies overlay the other’s music if you play my chord changes at half speed, i.e. changing chords every four instead of 2 beats – no mean feat when you consider the artist’s 15-odd chords are generally somewhat different to my 20+.

It was a eureka moment, but there was more: there were lyrical similarities as well, some of the rhyme to be precise (as well as the hook line being similar in A B and C). B and C both use the same word to end a line in the verse, and then they re-use that very same word. It’s very unusual to repeat a word like this because writers hate it – it shows a lack of imagination, after all it’s meant to be a couplet.

And so I became convinced this must amount to evidence of copying and therefore a breach – and I thought the melodic chain in common with song A would strengthen my position: my song B was clearly derived from my first song A and song B contains A’s (and C’s) chorus melody as the implied harmony.

I realise now that in fact unless there’s a chain of notes in common between the melodies there can be no infringement of copyright at all – even if a song has obviously been used as inspiration as in this case. As I understand it you can’t copyright ideas, presumably like chord sequences and images used in a video. The similarities between B and C, although numerous, may well fall on the ideas rather than the expression side of the line.

Now, I don’t want to sue and can’t afford to in the High Court in any case, but I’m very disappointed at the artist’s response, and so just want to be able to tell this story without the fear of litigation or intimidation – I want the right to free speech, essentially. I’m not setting out to sully his reputation: after all he has done nothing wrong by being influenced by my song. I’m flattered in fact, and I love his song (even though I do say so myself;), which is different, though similar-sounding to mine.

I had also told the artist a friend of mine who has a music degree from Cambridge and is head of his law firm (together with other classically trained musos)agrees this is far beyond coincidence – so there is weight and credibility behind what I’m saying: I’m not just some crazed fantasist. Legal advice was to commission a report by a ‘forensic musicologist’ – however no-one will comment; some have even said they are afraid to take the job on because it would mean getting on the wrong side of the artist’s legal team. Just what sort of a world are we living in!

There’s a twist, however. I’ve found legal precedent – UK case law stating that you don’t have to have seen a work (song A in my case) to be in infringement of it if information from it (the 5-note chorus melody in my case) is contained within an intermediate work (the implied harmony in song B in my case).

Personally I’m prepared to overlook that because I don’t want a legal case – and because I don’t think anyone should be able to ‘own’ 5 notes over 3 chords, let’s face it: it was probably used before by someone anyway so it would be churlish to complain about that.

What irks me is the way the artist seems to have taken an unpublished song and sought to re-write it and its video for his own gain. If he liked it he ought to have contacted me and offered me a deal or something. My song has made the finals of an international song contest, I’ve released it as part of a charity single so it has an MCPS licence, thousands pressed, and it’s done the rounds in the industry – I’ve been offered minor deals recently but nothing of any use, so it’s obviously a good song. It’s one of my jewels but there are plenty more (all protected by poor man’s copyright: cassette in an unopened jiffi bag with stamps and franks across the seal). It doesn’t seem fair that it’s not a meritocracy – it’s who you know not what you know. Unfortunately for me I tried the ‘who you know’ route and it backfired.

My question is – what can and can’t I say and show such that I’m within copyright law and don’t invoke the wrath of the artist? For instance can I post my story naming him, compare the songs in a musicological way, use stills from his video alongside mine – does that fall under Fair Use if I credit him? His video isn’t available to purchase but is streaming on YouTube. Surely I wouldn’t be taking a substantial part of his video by doing this, nor causing him loss of revenue – my use would just be for a critique. I appreciate I can’t badly mash-up his tune but if a chord progression can’t be copyrighted could I keep the hybrid where I sing my tune over his chord progression? Or could I in fact perform a cover of his tune using my chords after all (make it my own, to coin a phrase) – it would be tastefully done. Or would that need permission? How close-sounding is the production allowed to be? I guess sound-alikes are fine if the melody’s different?

I’ve actually written yet another song which is a kind of hybrid, influenced by his song too – just to illustrate how easy it is to achieve. I deliberately took his chords, altered a few of them, wrote a new tune, but deliberately used some harmony he didn’t express and took it as my own for the melody. I even copied the rhyming system and phonetic sounds to simulate what he appeared to have done at similar points. Could I record that and post it with my song B video footage mashed up so the scenes appear in the same order he used them?

I’d be fooling myself if I said I wouldn’t mind the copying if I had more power in the relationship and the artist’s song had been a massive hit, but as it stands I have to be pragmatic.

It’s all very weird but interesting. Any thoughts on what to do about this – I can’t just ignore it, it’ll eat me up. I need some resolution. To me, if all these similarities between B and C have been noticed it might even be they amount to substantial copying... that’s not for me to judge. But if the gold standard is the chain of notes then I guess not.

People always ask me what I want out of it. Just a bit of fairness and recognition would do I think. A bit of exposure wouldn’t go amiss and a record deal would be nice. But mainly I just want to get it off my chest. Sometimes I wish I’d never noticed. I can’t undo that now, but I guess with the videos being similar I would have in the end anyway.

My guess, confirmed by some other posts here, is that this sort of thing happens all the time. In fact my uncle says something similar happened to him in the 60s. He and his writing partner used to send pieces to their publisher in Tin Pan Alley. The next thing they knew their tune was on the radio, a massive hit and a classic, nothing they could do. I wasn’t sure whether it was a made-up story he could never live down until this happened...

Thanks in advance - Kris

[AndyJ]

Hi Kris,
As I understand it, the heart of your complaint is that you want recognition that your work was the inspiration for someone else's work, but without the expense of taking the matter to court.
It seems clear that the other artist (or his management) are never likely to acknowledge any such link, so I assume you want the recognition to come from your peers in the music industry. On that basis, publishing your side of the story seems a possible method, but as you have said, you need to be careful that you do not infringe his copyright when doing so.
I can't comment on the strength of your basic claim because as you know such analysis is normally very detailed and requires the expert testimony of musicologists to make the case. And so long as you are not seeking redress through the courts, this is unnecessary. You will be appealing to the court of public opinion. Clearly if you feel you have been denied the credit for your work, you can complain about it. But bear in mind the background which you yourself mentioned of musicians constantly 'borrowing' each others ideas, and ask yourself if any of your peers are going to really care about your plight, and effectively give you their moral support.
As for the method of airing your complaint, a Youtube video would certainly seem the most practical method of demonstrating the similarities you have highlighted, but it is very easy for the artist's management or record company to get a Youtube video taken down by alleging infringement which they do not have to prove to a court's standard. However, if you make sure that before posting you comparison video on Youtube you stir up enough interest via the music press, Twitter, and any other means you can think of, there's a chance that the issue could go viral, and if/when the artist's people get the video taken down, that will add substance to your case and the video will probably be re-posted to other sites and forums etc.

As far as your legal position is concerned, as long as you do not defame the other artist, then your right to free speech should be enough. There is no provision in copyright law about making groundless threats (as there is for trade marks, patents and design right), so as long as you make it clear that you are expressing your opinion (and not asserting as fact) what you believe to be the case, some sort of side-by-side comparison of the two (or three) songs and videos should fall within the fair dealing provision for the purposes of criticism or review under UK law:

30 Criticism, review and news reporting.

(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.

(1A) For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including—

• (a) the issue of copies to the public;
  
  (b) making the work available by means of an electronic retrieval system;
  
  (c) the rental or lending of copies of the work to the public;
  
  (d) the performance, exhibition, playing or showing of the work in public;
  
  (e) the communication to the public of the work,

but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.
[ ... ]

[WatchingPlanes]

Thanks Andy, that's a big help and a big relief to have some advice at last - I've been worrying about this for months. My musician/lawyer mate's wife actually teaches copyright law and she wouldn't help, so I've been pretty desperate and alone in this.

I doubt whether the artist will acknowledge being influenced, you're right.

It looks as though I can post something then, but I might run it past the artist first because I realise he's not going to want me to do this. Not that I'm desperate for contact with this artist or am trying to blackmail but it just seems like the right thing to do, always best to have a dialogue.

Isn't fair use a defence and by default I would have breached copyright? In theory could he take me to court anyway? I doubt he would because he's not only most probably lose but also draw attention to my insignificant little claim and make it big news.

As you say, a campaign and timing might help. But if they try saying that I'm showing his video in order to gain exposure and therefore sell an album or further my career, could that be construed as commercial? Is that too remote?

In my post I want to make it unequivocally clear that the artist has done nothing wrong legally (even though I thought he had at the beginning, and I was mistaken). I don't want there to be any way of them inferring that I mean I think he is in infringement of my copyright, because as I understand it (they tell me) it is defamatory and therefore libelous.

But it's interesting you say I can in fact express opinion, i.e. there is free speech after all. Could expressing an opinion that I believe my song and video were almost certainly heard and used as an influence be taken as libel? Should I go that far. It's what I believe from the evidence. I mean, if it's not legally wrong, could they say they infer that I mean it's morally wrong and therefore defamatory? It's a grey area to me. I wouldn't say morally wrong, as you say it goes on all the time and is part of the creative process. In his shoes I would have contacted the author if I liked the work - but maybe he thought I was published and doing ok. Could I express an opinion that I think it's possible that although he hasn't heard song A he might be in breach of that (pointing out the legal precedent)? Surely yes, if the likes of Satriani allege infringement about Coldplay.

If there had been infringement on my song B there's so much other evidence already my guess is it could be regarded as quite deliberate - in which case criminal as I understand it. But there's no infringement I don't think.

I understand there are ways of putting video up other than YouTube but these could be closed down too...

I don't want to show the whole video - is there a substantialiaty limit here? I could show clips, but equally I could show say 10 stills. If I do either of those things could the artist say I'm infringing his moral rights by 'altering' his work like this? Stills would be OK for me - more instant too. Some images are of the artist himself - is there a moral right I should know about there?

By the same token, can I alter his song in any way - for example re-record it with my chords underneath. That would still essentially be his song, just performed in a slightly different way. Do covers of this type or indeed any covers need permission (I think I read the latter on another post)?

If I seek permission and it's denied I guess I can mention that? Likewise, the solicitor's letter says 'Not For Publication' at the top. Surely that doesn't stop me mentioning the factual content of the letter? Is that just bluster to frighten me? I've done some of that here, without quoting or naming names.

I guess I could re-record my song B using his chords without any issues.

After that heavy letter I'm scared to put a foot wrong and be clobbered with massive court costs - although to be honest this'd only get leaked and become news anyway, making him look the bad guy in this. Personally, I don't believe he will actually follow through with his threats: no-one wants to go to court or encourage bad publicity by attacking an underdog.

My lawyer mate advises to drop this though because it's a big city-slicker law firm I'm dealing with and it could cost me tens of thousands, i.e. I'd have to sell the house. The artist has very deep pockets.

Thanks again,
Kris

[WatchingPlanes]

Isn't fair use a defence and by default

I mean Fair Dealing of course.

[WatchingPlanes]

I found this very useful when considering what is libelous or defamatory.

http://www.bbc.co.uk/dna/collective/A1183394

especially this bit

5. Defences against libel

The law lays down a number of ways in which defamatory publications may be defended. If the defences succeed, the publisher wins. But if they don�t succeed, the publisher loses: the complainant will have been libelled and will therefore be entitled to be paid damages and their legal costs. The defences are listed below.

Justification
The most usual defence against libel is to prove that the information published is true. But this can be a dangerous route because an unsuccessful plea could increase the damages against you because you will have increased the harm to the complainant. And remember, you must be able to deal with every libellous possibility, such as inference and innuendo. If your statement infers something greater, it is not enough to prove that the statement is just literally true. Merely asserting something will not be sufficient to prove that it�s true - you will need witnesses and documents to back up assertions (whether they�re yours or someone you�re quoting).

Fair comment
Fair comment covers content, mainly opinion, that cannot by its very nature be true or false. To be properly defensible, these comments must be:


Based on fact


Made in good faith


Published without malice


On a matter of public interest
In 2001, the Daily Mail lost a libel action brought by the former Tottenham Hotspur chairman Alan Sugar over the remark that he was a "miser" when he ran the club because he didn�t give his manager enough money to buy top class players. The jury were not sufficiently persuaded that there was any factual basis for making this comment. They didn�t deem it fair comment. He was awarded �100,000.

Privilege
Privilege is the defence where the law recognises that individuals should be free to speak their minds (and others to report what they say) without fear of being sued even if they get their facts wrong. It allows people to speak freely in court proceedings and debates in Parliament, and allows for such proceedings to be reported, so long as the reports are both fair and accurate.

[AndyJ]

Thanks for the link, WP,
However it worth stressing something that article touches on, but in my opinion does not emphasise enough. Libel litigation is enormously expensive, and since the onus is on the defendant to prove one of the defences, you generally need an experienced counsel to fight your case. Very many cases do not make it to a full trial because one side is outgunned financially and cannot afford to fight on. And because the UK is sometimes seen as the libel forum of choice, the fact that a potential claimant lives in another jurisdiction will rarely be a form of protection.
The upshot of that is that although you may have a good, even excellent defence, you also need deep pockets if you wander into the defamation arena where the big boys play.

[Arjumand]

Thank you I think it would be wise to get the nice German lawyer I spoke with on board. I will let you know how we progress when anything of significance happens. thanks again for all of your helpful words.