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Jack In The (Music) Box: Protecting Your Songs

By Jack Kavanaugh

Sally Vitelli, Kew Gardens, New York, asks a question writers have been pondering for eons. Here's Sally in her own words:

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"Jack, I think one of my songs has just been cut by another artist who claims he's also the writer. He's not, I am, but how does a writer handle a situation like this? I'm really worried because it's probably the best song I've ever written after many years of trying."

Sally, here's the real deal:

The first thing you and your attorney will be talking about is what's referred to as "access." In other words, did the other writer/artist have actual access to your song and how do you prove it? To do that you and your attorney will have to review your submission records: Did you ever send your song to this artist? If you did and you have a detailed, accurate history of your creation and you have a documented, dated record of having submitted your song to that artist, then I'd say you've proven direct access. It will also be helpful to you and your legal team if you have a file containing all the pertinent and relevant information you've put together as you went about the process of writing your song. But, Sally, What If???

What if you never sent your song to that artist or if you did, you can't prove it because your records aren't all they should be? Let's say for the sake of argument that you did not send him your song, and so direct access is out of the legislative mix. Does that mean that the game is over? Not necessarily! True, you've been unable to prove direct access, but you still have one course of investigative action to pursue in what's known in legal parlance as "inferred access." Sally, below is a case study we have in our files. Check it out so you can determine if inferred access can be applied to your dilemma, okay?

Some years ago a writer accused an artist, who was also the leader of a rock group, of stealing and recording his song. This case was adjudicated in a courtroom in New York. Both writers laid claim to having written the same song. The real writer didn't "formally" submit his song to the artist/writer in question, but he claimed it was definitely heard. The real writer also claimed inferred access because he'd cut, distributed and sold seventeen thousand copies of the song.

But did this prove inferred access? In other words, did the fact that seventeen thousand (released to the public) copies of this song prove that the group's lead singer actually heard it? No, because he simply denied he'd ever heard the song and he also claimed he didn't buy the CD that contained the song. Although multi thousands of cuts were distributed, it wasn't the same as if it was a mega chart buster that no one could deny having heard (as in Michael Bolton's case!)

Even though the real writer didn't "formally" send his song to that rock group's lead singer, he eventually proved the singer had heard it and had direct access, too. How? At one time he was a drummer for the band! Since he was at one time an actual member of the band, direct access was easy to prove that his song had, in fact, been heard and the need to prove inferred access became unnecessary.

Writers should take heed here and, yes, think about direct and inferred access. But also think about the lesson of this piece, which is to make sure you keep an ongoing file of the writing history of each song you write and a detailed list of where you send it and to whom. By the way, the "case study" we just wrote about is a true story and the rock group is famous, too!

Reprinted with permission from the Song Domain Newsletter Magazine. For a free copy, contact this author by clicking on the author's name at the top of this page.

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission

Touring Successfully

By Bronson Herrmuth

Taking a band on the road and bringing them back in one piece, still friends and wanting to travel together, is not easy. A lot of bands who hit the road to conquer the world with their music end up returning home and then quickly breaking up, no longer friends nevertheless band mates.

When my band was actively touring and traveling extensively through out the US, Canada and Mexico, we were forced to find replacements on more than one occasion, even though we were signed to RCA Records and having success. Invariably it had to do with the constant touring and the stress that caused inside the band. Every time we returned from a long tour, someone would quit and we would have to pretty much start over again from scratch. One member leaving can steam roll into two in a hurry if you don't move fast to find the right replacement. We went from a 6-piece group to a 3-piece in a two week period, with the first member giving his notice just hours after we signed with RCA.

The fact is all bands break up. They either break up or members pass away, which leaves you with the same outcome. It's the main reason it is so hard to get a recording contract as a band. The labels and industry executives know you are going to break up. The big unknown is when, not if. Knowing this makes it hard for anyone in the industry to make a commitment to your band and stick their necks out for you, which has to happen at some point, for you to move up to the next level. Someone has to fly your flag at the label or you are not going to get signed, or stay signed, for sure. Convincing an industry executive to put their job on the line on your behalf will be much easier once you can show them that you are serious and committed, including proving that your band can tour successfully. Even if you aren't concerned with getting signed to a label, if you want to make a living playing music, at some point you are going to have to hit the road.

Organization is crucial in order to have a successful tour. Unexpected changes will occur and the only thing you can do is to stay positive and be as prepared as possible to deal with them. Life will kick in and vehicles will break down, tires will go flat, the air conditioner or the heater will stop working, someone in the band will get sick. Countless things can go wrong or play out differently then you anticipated when you sat down to plan your tour. Every once in a while you even have good things happen too, so before you cancel your upcoming tour dates, keep reading.

Everyone in the band and crew need to be on the same page as much as possible before you even pull out of the driveway. This is the starting point to having a successful tour. Make sure that everyone has as much information as you can give them of what is going to happen next. Understand that this info isn't just for them; it is for their families too. Tops on the list for reasons someone leaves a touring band has to be their significant other giving them an ultimatum: the band or me. You can make it so much easier on everyone's relationships by simply supplying them with all the info you can. Everyone knowing where you are going to be and when you are going to be there will go a long way to keeping everyone organized and playing nice.

If you book yourself, you have to be sure to ask the right questions when taking the gig. If you are booked by an agent, then you have to make sure your agent knows exactly what you want to know concerning any gigs booked on your behalf. Whenever I book a show, I go through a list of specific questions and take lots of notes. This way I don't have to rely on my memory and I don't miss finding out the things I need to know. Here is an example of the information I am looking for to pass along to the band and crew:

#1. The date and the City where you will be performing

#2. The Venue address and phone number

#3. Contact name at Venue

#4. Your scheduled show time(s)

#5. Sound man name and phone number

#6. Time scheduled for loading in your equipment

#7. Time scheduled for your sound check

#8. Any discounts or freebies on food or beverage for the band

#9. Hotel information where you will be staying

#10. Names of other artists sharing the bill

#11. Names of any newspapers or magazines used for advertising

#12. Radio station(s) advertising your show(s) with call letters and station dial #'s

#13. Time scheduled for loading out your equipment

#14. Leaving location and time scheduled to travel to your next destination

It is important to understand that once you have this system in place, you need to stick with it as best you can. I know there will be times you won't have all of this information available to you before you hit the road, but be sure to pass on what you do have. Just the fact that everyone in your organization knows that there is a plan and that you are striving to be as professional as possible will help you keep everyone cool and headed in the right direction.

No one likes to be kept in the dark about their future and it can be tremendously frustrating to wait for someone to tell you what is going on and what is expected of you at the very last minute. I have sat in many a motel room for hour upon hour, waiting to get the details for a show that very night, only to get a frantic phone call telling me we leave in 30 minutes. Being able to plan ahead and be prepared will relieve much of the stress associated with being out on tour, and increase your odds greatly in regards to keeping your band together and willing to tour.

One of my former managers summed it up best one day in a conversation we were having as our band prepared to hit the road for a tour. Everyone was pumped and excited, laughing and cutting up with each other as we loaded up the bus and got ready to head out. He pointed that out to us and said the thing that separates the pack when it comes to really being a good band and having a long successful run together was being able to return from the tour in the same way.

To be just as happy and excited about being in the band at the end of the tour, as in the beginning. To come home, already anxious to be heading back out as soon as possible to tour and perform again with your band mates. Not to drag back in whipped and fighting among yourselves because of negative things that happened on the road inside the band. Having a strong internal organization will go a long way toward your band being able to tour successfully by heading off potential disasters that are just waiting to occur, if you let things get out of control and lose your direction.

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission

Why Copyright Laws Are Wrong

Why We Live With The Funnel Copyright System

By JRod

Definitions:

a. Copyright Industry: Publishers of book, music, software, magazine, and etc.

b. Works / Creations: Records, movies, songs, essays, books, and etc.

c. Creators: Scientist, writers, songwriters, and etc.

1. There will always be a funnel for all creations. Not all creations will reach all the public. The rule is and will always be, "Some of the creations will reach some of the public some of the time."

2. For security reasons not all creations can or should be made available to the public. For example, the design of an atomic bomb.

3. The laws are wrong in being concerned about creating incentives to have more works created. The theoretical concern of the law, it is claimed, is about the input (wide) side of the funnel, to incentivate the producers of the works, the creators.

4. The copyright and contract laws act to reduce the output side of the funnel as small as possible. We can the say this is the The Funnel Copyright System that has destroyed the quality of the works. Nevertheless, The Funnel Copyright System is good for the copyright industry because it reduces internal (old works competing with new works) and external competition (works from other publishers).

5. The actual result The Funnel Copyright System is to incentivate the copyright industry to become political and to become courtroom investors for the purpose of acquiring the works of the creators at the least cost, while exploiting the public who consumes the works with the highest prices.

6. Another result of The Funnel Copyright System is the creation of many organizations to protect the interests of the copyright industry at the expense of the consumers, who are generally unprotected by legislators and the courts.

7. Another result of the The Funnel Copyright System is to hide the works of individual creators, thereby suppressing the creation of more works. The vast majority of creations are not made available to the vast majority of people under The Funnel Copyright System, and represents a terrible loss. The copyright industry couldn¹t care less about this situation.

8. When the works of creators are hidden and suppressed, non-talented creators fill the void by passing their work as creation. The copyright industry likes this because the non-talented creator creations are cheaper and more the creators are more easily controlled.

9. The correct thing is to have incentives so more creations are made available to the public. The concern should be for the output side of the funnel to be as wide as possible. Ideally the funnel is eliminated. But this is bad for publishers, so the Internet and P2P is an enemy for the copyright industry because this industry is pro The Funnel Copyright System.

10. The best incentive is freedom to create and freedom to use the created works.

11. Not everyone is a real creator. For example, anyone can write a "poem" or a "song" or a scientific treaty explaining why the earth is flat, but not everyone knows what he or she is writing about.

12. The real creators can be paid with public funds.

13. The public can pay for their enjoyment or use of the creations through taxes.

14. Taxes can also finance or subsidize big budget creations, for example, movies. These creations can then be given short period monopolies to the creators.

15. What is fashionable or popular is determined by the copyright industry through intensive promotion, not by the creators or the public.

16. When the copyright industry talks about the welfare of creators and their employees, you are hearing wolves in sheep's clothing.

17. Whatever income is lost by the copyright industry on the output end if FCS is ended or reduced, it is money saved by the consumers, who will spend the savings in such a manner that more taxable wealth is created, so no jobs are lost and with the taxes the creators can be paid.

18. The copyright industry can still profit from the packaging and delivery of the creations, without having a monopoly over the creations, just like sellers of food.

19. The current laws create an incentive for the copyright industry to take creations that are not fashionable or popular off the market, regardless of its value, to be put in dead creation vaults, where the creations cannot be used by anyone, even the creator who created it. In The Funnel Copyright System, most creations are lost forever within the funnel and never come out. The creations were thus destroyed by the copyright laws.

20. The laws have created little incentive for creators create more. A few creators who are artists survive, but the vast majority does not.

21. The ideas of The Funnel Copyright System was developed when slavery was common and acceptable.

22. The maximum flow of creations at the reduced side of the funnel is achieved by making the reduced end of the funnel as wide as possible. That should have been the purpose of the copyright laws in the first place. The writers of the laws simply got off the wrong foot, not an uncommon thing, and worked on the wrong side of the funnel and came up with The Funnel Copyright System.

23. The constitution instead of saying "To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . ." should say "To promote the Progress of Science and Useful Arts, by securing for unlimited limited Time free access to Author¹s Writings and Discoveries . . . ". This is WHY COPYRIGHT LAWS ARE WRONG.

Additional Principles:

24. When it cannot be determined what is and what is not in the public domain, everything is on the public domain in the people¹s perception.

25. The copyright industry¹s rights will not be respected until the copyright industry respects the rights of the creators.

26. Everything created will eventually be digitized and freely transferable electronically very quickly. No one can stop that if it is done in the privacy of the home, even if the states label the copier "criminal."

27. Label enough or the wrong citizens "criminals" and the people will revolt.

This is WHY COPYRIGHT LAWS ARE WRONG.

Note: While this writing is based on American Constitution and laws, the principles apply to all nations.

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission

Drag Queen Better at Lipsyncing Than Ashley Simpson

You know your career is in trouble when drag queens are better at lipsyncing your songs than you are.

This is my friend DJ Ron, the gay DJ in Nashville, TN and also part of a remix team known as Piper.

Didn't know Nashville had a gay scene? Well, we do, and it's been built up largely by Ron. And if Nashville can have a gay scene, you should be able to do what you do anywhere.

When it comes to developing your music career, it doesn't matter where you are. You're the one who is responsible for making your own scene.

Any city in the US could be "the next Seattle," but it takes people like you to get out and go to clubs every week, play shows, put together events, and make great music. You can't wait on somebody else to make it happen.

Most people are not leaders; they follow what everybody else is doing. Leading people is hard. It takes a lot of organization, it's difficult to get motivated at times, etc...

If you're not going to do it, that's fine, but don't bitch because nobody else is.

More Trouble for Ashlee Simpson

She didn't learn from Milli Vanilli and she didn't learn from Chely Wright either.

Ashlee Simpson's street team was a bit too aggressive in their spin of her recent problems on Saturday Night Live. And now we know that the messages are as fake as Ashlee's live performance.

IT seems that the street team didn't post individual messages on each board. They simply cut and pasted the same thing...

In other Ashlee Simpson news, the Stop Ashlee Simpson Petition currently has 222,252 signatures and was featured on 60 Minutes.

Who says online petitions don't mean anything?

Back that Ass Up

As often happens in the hip-hop world, two rappers became embroiled in a dispute over who owned the rights to a song that utilized a popular phrase. And it took the musical ear of the 5th U.S. Circuit Court of Appeals to settle the matter.

Positive Black Talk Inc., et al. v. Cash Money Records, et al. plunged the conservative appellate court into the world of booming bass lines and popular street slang.

Chief Judge Carolyn Dineen King, who wrote the opinion, boiled the case down to a dispute between Louisiana rappers Juvenile and D.J. Jubilee over who owned the rights to a song "that included the poetic four-word phrase 'back that ass up.'"

In its Jan. 13 opinion, the 5th Circuit sets out the following facts: In 1997, both rappers recorded songs with similar titles -- D.J. Jubilee, also known as Jerome Temple, recorded "Back That Ass Up," while Juvenile, also known as Terius Gray, recorded "Back That Azz Up."

Juvenile's song was a hit, sold more than 4 million CDs and grossed more than $40 million in sales. However, D.J. Jubilee's song failed to elevate either his bank account or his profile. D.J. Jubilee continues to work as a special education teacher.

On Feb. 15, 2002, D.J. Jubilee registered his song with the U.S. Copyright Office. On that same day, he filed a copyright infringement suit against Juvenile in U.S. District Court in Louisiana; Juvenile denied the copyright infringement allegation.

To prevail, D.J. Jubilee had to prove that he had a copyrighted song and that Juvenile's song was "substantially similar" to his.

After a 2003 trial, a jury ruled in favor of defendant Juvenile, finding that D.J. Jubilee failed to prove that his version of "Back That Ass Up" was substantially similar to Jubilee's version of "Back That Azz Up."

D.J. Jubilee appealed to the 5th Circuit, arguing that many of the jury instructions were flawed, including instructions on substantial similarity, specifically when applied to the use of the phrase "back that ass up."

Juvenile believed that the songs were substantially different and used different hooks; D.J. Jubilee's hook was the phrase "back that ass up" while Juvenile's was a sample from the Jackson 5's song "I Want You Back." But D.J. Jubilee believed the jury should have been instructed to review specific portions of both songs, rather than both songs as a whole, according to the 5th Circuit's opinion.

The appeals court disagreed with D.J. Jubilee's arguments and affirmed the jury's verdict. The jury, as instructed, likely believed that the hook in Juvenile's song was not the phrase "back that ass up" but rather a sample from the Jackson 5's song, according to the opinion.

"And that belief would explain why the jury determined that the songs are not substantially similar," wrote King in an opinion joined by Judges Jerry Smith and Emilio Garza. "Accordingly, we cannot say that the jury instruction, even if it had been erroneous, probably resulted in an incorrect verdict."

REP TO PROTECT

Bruce Schewe, a partner in New Orleans' Phelps Dunbar, says his client, Juvenile, is pleased with the decision.

Juvenile viewed the copyright suit filed against him as a personal affront, Schewe says. "It was a claim of theft, and he was offended by that," Schewe says.

"It was entirely a lyric case. I was never able to get the plaintiff to concede that," Schewe says. "The real question was whether the phrase was the hook in either song and was novel in either song."

Nathan Gisclair, a partner in New Orleans' Montgomery Barnett Brown Read Hammond & Mintz who represents D.J. Jubilee, says the opinion is disappointing -- it gives little guidance on how plaintiffs should litigate cases such as this one in the future.

In its opinion, the 5th Circuit noted that D.J. Jubilee contended "that the district court committed reversible error by excluding, as hearsay, several newspaper articles that purported to find strong similarities between Juvenile's and Jubilee's songs."

The 5th Circuit ruled that they are hearsay, Gisclair says. However, the 4th U.S. Circuit Court of Appeals has ruled that such evidence is relevant in copyright cases, he says.

"The people are the intended audience, and music critics are part of the intended audience," Gisclair says. "And you don't see that [discussion] anywhere in the 5th Circuit opinion."

Gisclair says he won't appeal the decision -- his client doesn't have the means to do so.

NO FORMULA

Even though Louisiana and Texas have produced numerous hip-hop stars, music copyright decisions such as Cash Money Records are rare for the 5th Circuit, says David Schenck, an appellate partner in the Dallas office of Jones Day.

"They're expensive cases to litigate and often they settle," Schenck says. "You don't usually have people dodging and flexing all the way to a court of appeals decision."

Judges and juries usually come up with wildly divergent results when they're asked to answer substantial-similarity questions in music copyright cases, says Siva Vaidhyanathan, an assistant professor of culture and communication at New York University.

"Courts don't have a good formula for this," Vaidhyanathan says of the Cash Money Records decision. Such cases force judges and juries to act as music critics and music historians to reach their decisions. And rap music is a battleground in these types of copyright disputes because the artists commonly take the current language of the street and turn it into songs -- songs that may be similar to another performer's, he says.

"Substantial-similarity cases become thorny," says Vaidhyanathan, author of the book "Copyrights and Copywrongs." "And you're asking judges and juries to do readings of very complicated texts. They're going to come up with wildly divergent results."

As a matter of fact, Judge King says she listened to both rap songs before issuing her opinion.

"I don't know that I had to," says King, who admits she's not very familiar with rap music. "I'm interested in Brahms, but I did listen to it."

What Do You Sound Like? - The Science Behind It

The eggheads at Berkeley Lab have scientifically proven me correct.

According to them, "Humans retrieve information best when it can be linked to other related information."

In plain English, that means while you may think "Spirited Acoustic Rock" means a lot, it doesn't. Well, actually it does...a lot of different things.

Is it some kind of Christian band?

Is it like the Righteous Brothers?

Maybe it's like Peter, Paul, and Mary with drums.

Bob Baker has more details...

Rock Music Has Returned to Room Temperature

Bush was inaugurated for a second term.

The "Terror Alert" keeps getting higher.

Every day, more people are dying in Iraq.

But you know what's really scary?

Rock and Roll is dead.

There was a time when a conservative government and hard econonic times would really get people pissed off and some great art, music, theater, and writing would come out of it. Not today though...

Today, we're too busy dealing with Jessica Simpson, "reality" television, sport utiliity vehicles, and not eating carbs to worry about anything remotely on the edge or uncomfortable.

What happened to rock stars?

Sure, we've got some great technicians, incredible production, and really hot looking musicians, but nobody has any charisma anymore.

Everything is safe.

Blogs are more rock and roll than musicians.

Want to make money in the music business? How about taking a few chances?

Since when was questioning authority considered unpatriotic? Wasn't that how this country was founded?

If anybody on this list is doing something exciting, I want to know about it.

2005, as far as this blog is concerned, is the "Year of the Rock Star."

If you're making true ROCK AND ROLL, let me know because I want to feature you to the 60,000+ people who get my newsletter every week and the thosands of people who visit this blog...

I want TWO THINGS.

1. A link to your music

2. A letter explaining to me why you're a rock star.

Reply here with both.

Intellectual Property and Antitrust: Music Performing Rights in Broadcasting - Part IX: Conclusion

By Michael Einhorn

MusicDish Network Sponsor

The Department of Justice and ASCAP have negotiated a proposed Amended Final Judgment that promises improvement in a long problematic area for television and radio broadcasters, the presence ­ or lack thereof -- of a "genuine choice" between blanket and program licenses charged for the right to publicly perform music in non-dramatic settings. If implemented for ASCAP and extended to BMI, AFJ2 would provide for broadcast licensees a reasonable opportunity to use a system of program, direct, and source-contracts as a means of avoiding "all-or-nothing" blanket licenses that they may find overpriced.

Consequently, broadcast licensees increasingly will be able to contract directly with a composer rather than enter into licenses with her respective performing rights organization. ASCAP and BMI will have to offer program licenses that compete with their own members and affiliates, and broadcasters, advertisers, and the public-at-large will benefit from the outcome.

However, AFJ2 and the Rate Courts may be lacking in their governance of the competitive market between ASCAP and BMI. In vacating all protections for payouts for ASCAP members, the Department would rely upon head-to-head competition between the two organizations for new writers. As explained, ASCAP and BMI now do not operate under administrative rules that adjust blanket license fees consistently for changes in usage or catalog size.

Consequently, they do not have the financial ability to engage consistently in the competition that the Department envisions. A companion piece to this paper also suggests that competitive rules are lacking with regard to selective discounting, cross-subsidization, and license avoidance. If the Courts cannot establish rules to enable vigorous across-the-board competition for songwriters and composers, the Antitrust Division might tell us the purpose of having two (or three) PROs.

At the dawn of the Internet era, this is a timely issue that broadcasters, webcasters, artists, legislators, and regulators should resolve in short order. With administrative difficulties in systematically relating blanket fees to music use and catalog size, the most efficient means of providing a blanket license for radio and television broadcast now appears to be regulated monopoly. Writers and publishers may benefit considerably from scale economies in litigation and administration costs that could be achieved if the blanket license for musical compositions were so operated, as is now the case in every nation except Brazil.

Based on most recent web site data, for every dollar paid out to members and affiliates, ASCAP and BMI respectively retain 18.2 cents and 22.0 cents. These numbers, as well as all implicated negotiation and administrative costs incurred by music licensees, might reasonably be halved were blanket licensing of performance rights restructured as a regulated monopoly. Legislators may then reasonably call upon the Department to state exactly where it sees workable competition emerging between ASCAP and BMI and the ways in which its Consent Decrees will facilitate it.

As a final matter, the Department's suggested prohibition on digital licensing is a practical idea that can be implemented for webcasting and other non-interactive services now eligible for compulsory licensing of sound recordings under Section 114(d)(2) of the Copyright Act. In November, 2000 (after the release of AFJ2), the Recording Industry Association of America, the trade association for the five major record labels, unveiled the online arm of its Sound Exchange royalty payment system, which now collects digital royalties for sound recordings broadcast over digital satellite and music subscription services. Sound Exchange has signed deals with 280 record companies, with Big Five contracts likely very soon.

The system will monitor online performances of all sound recordings, and distribute royalties evenly between recording labels and artists. Evident transactional economies would be possible if Sound Exchange or similar label organizations were empowered to administer additionally the performance rights for the underlying musical compositions and split royalties evenly between publisher and writer. Indeed, a joint collection process now exists for tax revenues collected on digital audio recorders and tapes under the Audio Home Recording Act, which statutorily assigned two thirds of revenues to copyright owners in the sound recording, and one third to the musical composition.

Administrative efficiencies would also be considerable if digital performances of musical compositions and sound recordings could be regulated together. License fees for statutory licenses for digital sound recording performances and secondary mechanical reproductions are determined periodically in arbitrations at the Copyright Office, where all affected players have equal standing to comment and present arguments. Such a process is more open and more efficient than the present system for performance rights that operates under two independent Rate Courts that interpret Consent Decrees narrowly, fail to coordinate operations, and deny standing to all parties except the Department, ASCAP, and BMI. Integrated administration allows for coordination of approaches and consistency of outcomes between complementary media

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission

Jack In The (Music) Box: Protecting Your Songs

Sally Vitelli, Kew Gardens, New York, asks a question writers have been pondering for eons. Here's Sally in her own words:

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"Jack, I think one of my songs has just been cut by another artist who claims he's also the writer. He's not, I am, but how does a writer handle a situation like this? I'm really worried because it's probably the best song I've ever written after many years of trying."

Sally, here's the real deal:

The first thing you and your attorney will be talking about is what's referred to as "access." In other words, did the other writer/artist have actual access to your song and how do you prove it? To do that you and your attorney will have to review your submission records: Did you ever send your song to this artist? If you did and you have a detailed, accurate history of your creation and you have a documented, dated record of having submitted your song to that artist, then I'd say you've proven direct access. It will also be helpful to you and your legal team if you have a file containing all the pertinent and relevant information you've put together as you went about the process of writing your song. But, Sally, What If???

What if you never sent your song to that artist or if you did, you can't prove it because your records aren't all they should be? Let's say for the sake of argument that you did not send him your song, and so direct access is out of the legislative mix. Does that mean that the game is over? Not necessarily! True, you've been unable to prove direct access, but you still have one course of investigative action to pursue in what's known in legal parlance as "inferred access." Sally, below is a case study we have in our files. Check it out so you can determine if inferred access can be applied to your dilemma, okay?

Some years ago a writer accused an artist, who was also the leader of a rock group, of stealing and recording his song. This case was adjudicated in a courtroom in New York. Both writers laid claim to having written the same song. The real writer didn't "formally" submit his song to the artist/writer in question, but he claimed it was definitely heard. The real writer also claimed inferred access because he'd cut, distributed and sold seventeen thousand copies of the song.

But did this prove inferred access? In other words, did the fact that seventeen thousand (released to the public) copies of this song prove that the group's lead singer actually heard it? No, because he simply denied he'd ever heard the song and he also claimed he didn't buy the CD that contained the song. Although multi thousands of cuts were distributed, it wasn't the same as if it was a mega chart buster that no one could deny having heard (as in Michael Bolton's case!)

Even though the real writer didn't "formally" send his song to that rock group's lead singer, he eventually proved the singer had heard it and had direct access, too. How? At one time he was a drummer for the band! Since he was at one time an actual member of the band, direct access was easy to prove that his song had, in fact, been heard and the need to prove inferred access became unnecessary.

Writers should take heed here and, yes, think about direct and inferred access. But also think about the lesson of this piece, which is to make sure you keep an ongoing file of the writing history of each song you write and a detailed list of where you send it and to whom. By the way, the "case study" we just wrote about is a true story and the rock group is famous, too!

Reprinted with permission from the Song Domain Newsletter Magazine. For a free copy, contact this author by clicking on the author's name at the top of this page.

Provided by the MusicDish Network. Copyright © Tag It 2005 - Republished with Permission