Paul Tauger |
June 17th, 2006 07:13 AM |
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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?
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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.
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How much of a variation must there be in order to be considered separate and unique from the original?
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Copyright infringement results from making an unauthorized copy. There's no magic number for how different something must be to escape infringement liability.
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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?
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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.
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