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