Variation of Copyrighted Music

[Jeff Emery]

This is a hypothetical question.

If I had a copy of a tune (no lyrics) on CD and had a band play their version of the tune with some differences, would that tune be considered copyright infringement?

How much of a variation must there be in order to be considered separate and unique from the original?

I remember back to the suit involving Queen and Vanilla Ice. Ice had sampled Queen's "Under Pressure". All he did was add one or two notes to the bass riff. It was considered copyright infringement.

But I also remember from my days in radio where one of the commercial spots we did was for the Tough Man Contest. We used a track that sounded very close to the "Eye of the Tiger" theme in the Rocky movies. It was very close yet different enough that we could use it. It was part of the station's production music library.

So how close to the original can you get (or how far away must you get) and not be considered infringing on a copyright? Or is that for a judge and jury to decide?

Jeff

[Pete Cofrancesco]

i don't know what exactly constitutes it, but in the two examples, vanilla ice was on top of the charts and making huge money. that will attract scruitiny while the other is on the radio for 1 minute and its gone. the copyright holder has to notice it, want to sue, and be able recoup enough money to make it worth his while.

[Paul Tauger]

Originally Posted by Jeff Emery

This is a hypothetical question.

If I had a copy of a tune (no lyrics) on CD and had a band play their version of the tune with some differences, would that tune be considered copyright infringement?

It depends. If the band publicly performs the tune, they've violated one of the reserved rights. If you record their performance, you've made an unauthorized copy. If the band writes out their new arrangement, they've created a derivative work.

How much of a variation must there be in order to be considered separate and unique from the original?

Copyright infringement results from making an unauthorized copy. There's no magic number for how different something must be to escape infringement liability.

So how close to the original can you get (or how far away must you get) and not be considered infringing on a copyright? Or is that for a judge and jury to decide?

Yep. In most jurisdictions, copyright infringement is determined circumstantially, using a 2-prong test: objective and subjective substantial similarity. The test is a little involved, and I've written about it here in the past. However, it does come down to a determination by the trier of fact whether copying has occurred.

[Daniel J. Wojcik]

Originally Posted by Paul Tauger

It depends. If the band publicly performs the tune, they've violated one of the reserved rights.

If the original was ever made public, the band can do a "cover". They'd need to pay royalties, but there's no permission involved...just payment. And it's a pittance."

Ditto on the recording of it.

[Paul Tauger]

Originally Posted by Daniel J. Wojcik

If the original was ever made public, the band can do a "cover". They'd need to pay royalties, but there's no permission involved...just payment. And it's a pittance."

Not true. Some venues enter into licenses with BMI and ASCAP. However, not all do. The OP asked about "public performance." Absent a license, it would be infringement.

Ditto on the recording of it.

The mandatory recording license permits exact covers, but not new arrangements.