Usually it comes down to a judge, and is therefore very unscientific so judgements can be very tenuous and inconsistent.
Copyright is a Three Legged Stool. If all 3 legs are in position, the case for an infringement of copyright exists. If any, or all, the legs are missing, the case is weakened, and the stool falls over.
The 3 legs are:
- Has one composer had any way of hearing another work to allow one to be a copy?
- You notice that a famous star has a hit that sounds very much like your tune. It could be a coincidence unless you could prove you sent a demo to them, or that they heard your band at a rehearsal studio.
- Is what you have allegedly copied original in the first place?
Classic blues licks and riffs are often used. They are not your original composition, and you may have copied them, but you are not infringing unless someone can prove that their work was original in the first place. An example of when this would be an infringement is when a riff is very memorable, e.g. the introduction to Johnny B Good. This copyright belongs to Chuck Berry.
Be very careful when asked to write tributes, pastiche or parody. They are all much the same and things are even worse if a parody is viewed as defamation of the artist! Then there can be damages as well.
- Is what you have
copieda substantial part of the original work?
- What is substantial? Very vague, and open to interpretation, but can be defined in 2 ways:
A distinctive hook, albeit very small, can be a qualitative copy. E.g. the opening notes of the Beatles ’Yesterday’.
If whole chunks of an original work also occur in your work, that is a copy. So, if any one of the 3 legs doesn’t hold up, the case for an infringement is lessened. However, experience shows that in most court cases, only one of the ’legs’ gets referred to in any detail. The others might be referred to in passing, but their emphasis is less.
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Even one leg being present can give someone the opportunity to put a case, often a bogus case. Even very tenuous access can be grounds for a nuisance case, which because of legal aid might go to court and costs a fortune in legal fees, which will never be claimed back from the individual pursuing the claim.
I lost this tape on the bus and the artist must have found it and copied it. Or, a tape gets thrown on to a stage during a live performance and the artist is photographed catching it. So, access can be proven. Both of the above have happened, and that alone has lead to an out of court settlement, rather than having the expense of going to court.
If you are doing a sound-alike (or what you should start to call a style-alike), you to a greater or lesser extent involved in copying. Be careful. You must ask whether there is access, copying of the original and substantiality. If there is, then there is a real problem.
How far can you go? Try not to go close. Even something in the style of is dangerous. If you absolutely have to get close, muddy the edges; introduce conflicting styles, so it cannot be compared with one individual artist, track or group. Don’t refer to a single work, that is lethal. Bear in mind the qualitative factor. Don’t string together a chain of classic riffs. Change the key. Change the time signature. Don’t give it a title that implies a link to the original.
You must also consider whether the setting (visual imagery or voiceover) may suggest a closer link to the original than you intend. As well as copyright theft there is a
passing off as law, by which the context may have much more bearing on the case than any off the above considerations. This can be completely outside the control of the composer if such elements are added afterwards, but the composer may still be the defendant in a legal battle.