Thursday, December 13, 2012

Will Copyright Owner Take My Home?

Dear Rich: I'm in a band with my friend. He and I finished recording an album recently and are looking forward to releasing it as well as performing the material during live gigs. I have a serious issue with on of the tracks. It contains spoken word audio samples from a few TV programs. I took on the responsibility of research what we would need to do to get the album copyrighted and in the process found myself scared out of my wits regarding the consequences of copyright infringement. I'm having a difficult time persuading my friend that it isn't a good idea to continue using those samples. He has complied to some extent by removing most of the samples but is pushing to leave one in because it has heavy effects applied to it that he claims will obscure the original source. I also hear the argument that the program is over 20 years old and nobody will recognize it. It is changed to some extent but I'm still not convinced. It will be so easy to come after me. My name is on the recording studio receipts and we entered into a corporation together. There is all sorts of discoverable evidence against me out there. I don't want to lose my house, live with my dad, and then when he dies have what little inheritance is left taken away. The technology to automate capturing infringement issues becomes more possible by the day. What can I do? We can relate to your feelings of paranoia. We've committed infractions in our past and maybe someday they'll be discovered and we'll be off to comedy traffic school (or its moral equivalent). Sometimes we lie in bed and wonder if we did something wrong that we can't remember. That drives us really crazy, as if it will all come out in a flood of repressed liability.
Right, you had a question.  Keep in mind the words of Thomas Jefferson: "How much pain have cost us the evils that have never happened." While you imagine the ultimate end-scenario --  TV-show attorneys gloat over the huge cash verdict they've inflicted on you -- the reality is far more complex. We've put together this table with our guesstimates as to the likelihood (based only on our anecdotal information and personal experiences):

Odds of Happening
Someone associated with the 20-year old TV show will hear your track.
1% or less. Considering the zillions of tracks out there, it’s highly unlikely anyone will hear your track unless you have a reasonable hit.
The person hearing the track will recognize the sample as coming from the 20-year old TV show.
50% or less. We haven’t heard your track but you state the sample is heavily effected, making it harder to recognize.
The person will care enough to investigate.
25% or less. Usually copyright owners don’t get worked up about a single quote from a show. However, there are exceptions for superstars (and of course, if you’re a superstar, you can afford to deal with all this.)
After investigating, the copyright owner of the 20-year old TV show determines that its worth engaging an attorney to stop your use 
50% or less. Just getting the attorney on the phone is at least $300. So there has to be a substantial concern to contact an attorney over a single quote used on a recording.
The attorney who is engaged writes a cease and desist letter asking you to stop and for some arbitrary payment.
75% or less. Once engaged, it’s no big deal to write a C&D letter. But anybody can make demands. Your attorney may advise you have a good defense and suggest blowing off the demands, or alternatively reaching a peaceful settlement  -- perhaps you stop distribution, destroy existing copies and pay a few thousand dollars (if any money).
You blow off the letter and the attorney decides to file a lawsuit.
25% or less. It’s $5,000 to $10,000 just to file a lawsuit. Chances are the other side won’t want to risk the suit with this minor an infringement. Alternatively, they may investigate you and determine your pockets are not deep enough to pursue.
A lawsuit is brought and you lose.
50%. You never know how things will go with a fair use or “de minimis” claim in court but you’ve got a decent shot with these facts.
After you lose, the court awards your house and inheritance to the owner of the 20-year old TV show.
15% or less. The punishment has to fit the crime and if you didn’t make much money, a reasonable judge won’t likely hit the big buzzer for statutory damages. You keep the home and inheritance.
Statute of Limitations. Also,  the TV show can't go after for you forever. The statute of limitations for copyright infringement is three years from the date when the infringement "could have been discovered with reasonable diligence."
Bottom line dept. We agree with Joseph Heller -- “Just because you're paranoid doesn't mean they aren't after you.” But we also don't want interesting art to be unfairly sideswiped. Yes, it's always possible that something bad will happen based on your release, but we think the odds are on your side.

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