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Forensic Musicologist Needed


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Hi there,

One of my songs seems to have been copied (I pitched it to a name artist 10-12 years ago) - the question is whether it's substancial copying, i.e. a breach of copyright.

I contacted the artist and specifically stated I didn't want any share of copyright for what had appeared to have happened.

I got stone-walled so I said I'd make it public if I didn't get an answer. No reply.

I posted mash-ups on YouTube (yes, the videos have many similar scenes too) and I got a firm 'cease and decist' from the artist's lawyers, adding that I was in breach of the artist's work by using some of it in the comparison, and that they could infer from my post I was saying the artist was in breach of copyright, which was denied. Clearly they had something to be very worried about.

In my post I specifically stated this was similarity only, and coincidence, and told the story of the personal connection and how the song was pitched.

I took everything down and saw a lawyer who said I need a forensic musicologist's report. Every musicologist I've spoken to has shown interest but got cold feet - some even stating they're afraid to get involved because of the risk of getting on the wrong side of the artist's legal team.

Classically trained friends of mine (some of whom are lawyers too!) agree this is far beyond coincidence, but again are reluctant to help.

I've done all the analysis of the songs in question and just need it written in the right lingo as I'm not a trained muso etc etc.

For legal reasons I can't elaborate in public but we can take it off-line if anyone's interested and willing to help?

The funny thing is, even if there's no breach of that song it turns out the artist's chorus (a harmony of my tune) is the same as an earlier song I wrote: the song which inspired the one the artist may have copied. In UK law there's precedent in a case I found, i.e. you don't have to have heard a work to be in infringement of it if information from it (the melody) is contained within the intermediate work (the song that I pitched) - in my case as an implied harmony and the intermediate work was copied. There's a lot more copying to it but no chain of notes in common except for that.

Actually I don't want (can't afford either) to sue in the High Court but to any lawyers listening - could you advise on what I can and cannot say/show without invoking the wrath of the artist concerned and the legal action (injunction, costs etc) already threatened? Surely there's freedom of speech to be able to tell this story whilst unequivocally stating the artist has done nothing wrong in using my song as an influence! I'm prepared to overlook that legal loophole because basically even though that may give me a winnable case I can't afford it and anyway there's no money in it. It's not like he did that bit deliberately either as that song wasn't available to listen to as a demo.

The video images have to be seen to be believed in all seriousness. I can't believe those images were used because it suddenly makes the idea that my song was copied very credible indeed, especially to the man-in-the-street.

Both songs are quite complex yet both melodies seem to fit over one another's (different) chord structures with very little massaging...

Cheers,

Kris

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Thanks mate.

The evidence I have is that it's beyond doubt that the similarities are beyond coincidence - and there is a chain of notes in common - which is what appears to be the benchmark for a sucessful case.

How would you feel if it were you? Do you think it's fair for an unsigned writer to be used and then bullied like this?

I can't get justice as you say - I'm impotent here - but you miss the point: people agree with me but won't write anything for me because they are fearful. That's oppression of the freedom of speech. And that's what I find the most objectionable.

If I could get a musicologist's report and post something that would be justice for me.

Strangely, my uncle claims to have submitted music to his publisher in the 60s which was lifted and they only realised when the song (which was a massive hit) was heard on the radio. I had my doubts, but after what's happened to me I guess it happens all the time.

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By the way, I don't have the energy to argue over this. If anyone's willing to help, fine.

My motive isn't money, it's justice. There's no money in this as the single didn't chart. But the artist's motive was money - this song was meant to be the hit off the LP, the lead single.

I'm not wll past exploring any simple, reasonable courses of action - this is the advice from a lawyer: get a muso's report.

"you have no real money to pour into litigation, nor can you afford to lose any if this artist decides to drag you in" all I can say to that is no-one wants to go to court, and that includes the artist, especially if silencing me by other means is possible. This case would only make them look bad.

"your copyright claim isn't exactly a slam dunk, based on the fact that no one jumped at the opportunity to handle this for you" I have a realistic case in fact. One bloke I know has a music degree from Cambridge and is MD of a law firm - and he agrees, but is too afraid to help.

"At some point, you're gonna have to ask yourself......

- at what point will you be willing to cut this thing lose....

- and at what personal cost to you?"

You're right tunesmith but I need closure on this. You can't just ignore it when something like this has happened: you have to explore the avenues! There will be more personal cost in psychological terms if I walk away.

Here's a quote from John Lennon - bear in mind I was making no demands and was very open in my approach to the artist, having faith in human nature - yet they reacted in fear and with aggression and evoked a fearful response in others. I love the reference to creativity here as well; very apt. Even more iron given the title of the artist's song and their brand image being the opposite of what I've experienced.

“There are two basic motivating forces: fear and love. When we are afraid, we pull back from life. When we are in love, we open to all that life has to offer with passion, excitement, and acceptance. We need to learn to love ourselves first, in all our glory and our imperfections. If we cannot love ourselves, we cannot fully open to our ability to love others or our potential to create. Evolution and all hopes for a better world rest in the fearlessness and open-hearted vision of people who embrace life.â€

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Have you tried the Musician's Union? As a member I believe you are entitled to legal support.

If you are determined to release it, why not release your original and video, make no specific case, simply the date you recorded it, and tell a story of submitting it to a named artist (without naming them). No mash ups, so direct references, simply leave it up to the listener to make any connections.

You will need to prove when your song was written, and that you wrote it. If you can't do that (providing documented evidence of publication etc.) then you won't get anywhere at all. It's not just about demonstrating similarity or even exposure to the song, the fundamental are the timeline proof and proof of ownership.

If you cannot prove both of those with substantial proof and there is a strong similarity then I would not release your song. Their lawyers would have a field day.

I am not legal counsel, nor legally trained so please don't rely upon my comments or consider it legal advice. There are a few music lawyers that are members but they might not be willing to offer advice. I am not sure if we have any members who are specifically forensic musicologists, but we might, who knows :)

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Thanks guys - I'll try the MU, also trying Uni professors etc.

I released it ages ago - for charity in fact. And it was 'published' on the internet before that. And around the time of writing, which was in the early 90s, I protected all of my songs by the poor man's method, i.e. jiffi bag with stanps and franked over the seal, kept unopened.

Lawyers have said get a musicologist's report first - so that's what I'm trying to do.

I think publishing something mentioning the similarities to a certain (not to be mentioned) song and video is a pretty good idea. If I don't name names, AND make it very clear that artist has done nothing wrong in using my song as inspiration, no irony, no possibility for inferences, then I should be safe - and people might figure it out for themselves anyway. Unless the artist pulls the video, though the chorus melody is identical to my earlier song, so that kind of gives the game away if people have heard it or can be bothered to search.

Cheers,

Kris

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Do you have a link to both of the songs?

Not promising anything, but I can certainly give you a qualified musicologist's opinion on whether the note combination overlaps between the two tracks can be explained by coincidence.

As far as your chances of succesful legal action I'm pretty certain you're on a hiding to nothing, but at least you might have some backup if the other party ever tries to take action against you.

The thing is, if you prove that your wrote your song before January the 10th, 1989, the other party can still claim they wrote the song in 1988 and it is basically nigh on impossible to disprove this.

Anyhow, that is for lawyers to worry about. I can give you a report on the similiarities between the two songs. To give a very simplistic example of how this might be quantified, the chances of two note intervals in a diatonic major scale and in the ionian mode being the same could be taken as 1 in 7. In practice it will be lower than that since certain notes are more likely to follow certain other notes, for example, some notes more urgently need resolving than others, but correcting for this, if two consecutive notes are the same, three, four, et cetera, the odds can be ascertained using a simple mathematical function.

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