Pop Singer Infringes on Copyrighted R&B Song

This case involves a pop singer who made a pop song with the same name as a copyrighted soul song from the 1960’s. The original song was made by a famous group that had many R&B and soul hits from that era. The original song was not released on an album and was only released as a 45-record single. The song was not a commercial success. The pop singer was famous for doing songs that revived the soul sound from the 1960’s and did a number of cover songs of 1960’s hits that were very popular. The singer and a friend co-wrote a song with the same name as the original song and it became a very successful hit on the pop music charts. When they were writing the song, the pop singer remarked to his friend that he wondered if there was another 1960’s soul singer who had written a song with a similar name and also commented that he thought they might be copying that song. The song had several elements that were similar to the 1960’s song, including musical pitch, lyrics, and instrumentation. The singer had grown up listening to and singing the songs of the soul group and had been a collector of their music as a young person. The soul group brought suit against the singer for copyright infringement. Experts in the music industry, audio engineering, and copyright infringement were retained to opine on the issue.

Question(s) For Expert Witness

1. Can a pop singer record a song with the same name as a little-known copyrighted soul song from the 1960’s?

Expert Witness Response

In order to prove copyright infringement in a music case, the copyright owner of a song must show that they have a valid copyright, that someone else copied their song, and that there is unlawful copying, i.e., there is substantial similarity between the two songs. In general, the copyright owner must show that the person who made the new song had “access” to their original song. In this case, the pop singer probably infringed the copyright of the 1960’s song. Even though the pop singer said he and a friend co-wrote the new song, he thought he knew another song with the same name by another popular 1960’s group. This means that the pop singer might have subconsciously copied the original song. Subconscious copying is sometimes enough to show copyright infringement in a music case. In this case, the pop singer definitely had “access” to the soul group’s music, since he listened to and collected their albums as a child. Since the songs of the 1960’s group were very popular and had been widely played on radio stations across the country, the pop singer definitely had “access” to the group’s songs and might have subconsciously copied the song. Also, the pop singer was famous for doing the same type of music (soul music) as the 1960’s soul group and since his song had similar musical elements to the 1960’s song, there was probably substantial similarity between the two songs. Since the similarities between the two songs were such that they may only be explained by copying, the pop singer probably infringed the soul group’s copyright.