To prove infringement of our copyright rights, our band must establish three things namely: we own the work, the Hipsters band had access to our song and our chorus ‘Starving’ and that of Hipsters ‘I Haven’t Eaten in Two Months’ have substantial similarity.
To begin with, we copyrighted our song ‘Starving’ two years ago when we wrote. Therefore, we have copyright ownership to the song.
To prove the second element of Hipsters having access to our song, we performed the song one year ago at their album launch as one of the opening bands. Hipsters were in the front audience dancing along to our song. Moreover, it will be important for us to show video evidence of our performance where we played the song while they were in attendance so that we can substantiate our evidence of them having access to our song.
Thirdly, similarity has to be established. To establish similarity, the test is that of an ordinary music listener. The ordinary music listener test whether an ordinary music listener listening to the two choruses will realize lyrical and melody similarity. If the ordinary music listener establishes similarity, then the similarity doctrine will be invoked.
In conclusion, the best way to remedy the situation would be through filing a suit which will be aimed at negotiation between the two bands to find a mutually accepted remedy to the situation. The appropriate remedy would be sharing of royalties since the song is commercially successful and it is being used for a big film trailer. The other appropriate remedy will be actual damages since the successful song is attributable to the use of infringed-upon materials. Oftentimes, cases like this won’t be taken to trial as they are costly in terms of legal fees .However, the settlement will depend on the conduct of Hipsters. It is possible for them to argue that the parts of the song that were used were so simple and common that they lacked originality to warrant copyright protection. Hipsters may want to take the case to court. If the case goes to court, the courts will have to decide whether there was copyright infringement and how much our band shall be compensated.
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