Copyright infringement Help and Advice needed!

mattdens · Post by **mattdens** » Wed Aug 08, 2012 7:57 pm

I am in need of help and advice regarding a copyright infringement issue.

The story:

I am a UK citizen who writes poetry as a hobby and share it online on certain websites. I wrote a poem in March 2010 called 'Fear', it has been posted by myself on 2 websites, poemhunter and facebook. Both of which contain an upload date (13th March 2010).

A couple of evenings ago whilst googling the first 2 lines of the poem, I discovered that a Canadian heavy metal band have directly plagiarised the first 8 lines of the poem for use as lyrics in one of their songs (I choose to withold the name of the band and song until I consult a solicitor). The song is a track off their latest album.

Although the band is not really considered mainstream, it is certainately not a small artist either. From what I have found out, the album that the song appears on had reached 142 on the US album charts and 50 on the Canadian album charts in the week of its release. In addition to this, from the information I have gathered, the band have currently sold in excess of 8,000 copies since its release in July 2012.

The key facts:

-Consent for the poems use was not requested byt the band in question, nor granted by myself (the owner of the poem)
-The band in question, profited and continue to profit from the unauthorised use of the poem
-The poem/lyrics were not credited to myself in the bands recorded copy or literature.
-No royalties or payment for the use of the poem was offered to or recieved by myself

Evidence of copyright/ownership:

-Facebook entry, both time and date of post are visible on the post
-Poemhunter entry, date posted is visible beneath the poem although the poem had been edited in 2011
-Third party posts by 2 seperate people in their respective blogs, date of post is clearly visible in both cases (March 2010 and July 2010) and poem is credited to me in both.
-Google search will provide numerous results where the poem had been uploaded by myself and third parties with dates rangin from it first appearence in March 2010 to now August 2012
-An MS Notepad document on my hard drive, time and date stamped in its 'Properties'
-An MS Word document on my hard drive, time and date stamped in its 'properties'

Can anyone help me? Is my claim justifiable? Is my evidence appropriate and good enough? What should I do?

If anyone readin this can help me I would greatly appreciate it.

Many thanks.

-Matthew Densley-

AndyJ · Post by **AndyJ** » Thu Aug 09, 2012 8:19 am

Hi Matt,
I think that the upload dates of your poem to the two websites should be ample evidence of the pre-existence of the poem, and the files on your hard drive are very good verification that you wrote the poem. The reason that they are not cast iron proof is that it is not technically too difficult to fake the creation dates of files on a computer that you have control of, but it is much more difficult to do the same thing on a website's servers.
Unfortunately neither the website entries nor the files on your hard disk prove absolutely that you are the author - you could in theory have found the poem and typed it out at home, then uploaded it to the websites - but frankly for the purposes of your claim, I think what you have by way of documentary evidence is very good.
You don't mention what remedy you are likely to seek from the band - whether it is for damages and some sort of royalty based on past and future sales, or for them to stop using the alleged infringing song altogether and for all remaining unsold copies of the album to be forfeit, or some other remedy, but these are all things you should discuss with a lawyer.
Because of there are two separate jurisdictions involved - UK and Canada - this is definitely a case for involving an experienced IP lawyer. That way your claim should be treated more seriously from the outset by the record company and the band's management, and an equitable settlement should result without the need to take the matter to court.
You may have seen my reference to this case in another recent thread. It shows that the amount of copying which you allege has taken place would be well within the category of 'substantial' for you to get a court decision in your favour. Canadian and UK law are very similar on this aspect. If you would like to read up on the Canadian Copyright Act 1985 (as amended) you can find it here, or there is a pdf version here.

mattdens · Post by **mattdens** » Thu Aug 09, 2012 4:02 pm

Thank you very much for the reply. I am currently in talks with a couple of solicitors and trying to find the right person to take on the case and right approach to it.
I would like to seek, royalties, creditation and damages. However, the unfortunate situation whereby the case crosses 3 legal jurisdictions (UK, Canada and US) means it is going to be a coplex situation to get resolved.

Thanks again for the reply, I do find it reassuring. Wish me luck!

-Matt-

WatchingPlanes · Post by **WatchingPlanes** » Fri Aug 31, 2012 12:52 pm

hi Matt, good luck with this. If you find a lawyer I wouldn't mind the contact if possible since no-one I've contacted is willing to comment on my case (previous post). I need to make sure exactly what I can say without being sued by the artist who copied my work. Reality is all I can do is tell the story even if I do have a good case because sadly there's no small claims track any more, only the high court which is very costly, and the artist has deep pockets. Kris

mattdens · Post by **mattdens** » Fri Aug 31, 2012 3:26 pm

WatchingPlanes wrote:hi Matt, good luck with this. If you find a lawyer I wouldn't mind the contact if possible since no-one I've contacted is willing to comment on my case (previous post). I need to make sure exactly what I can say without being sued by the artist who copied my work. Reality is all I can do is tell the story even if I do have a good case because sadly there's no small claims track any more, only the high court which is very costly, and the artist has deep pockets. Kris

I have been reading your story and it is going to be complicated to resolve.
I was a bit confused with what the infringement exactly is, perhaps you can confirm some things for me so I can understand it better.

Clearly your songs came first by a large span of time. What evidence could you provide to claim ownership of your material? Can you prove that you created it around the time you stated?
To what extent has plagiarism/copying occured? What are the similarities in both the music and the lyrics?
Which country did the infringement occur? (where was the infringing track recorded). What nationality is the infringer?

The answers to these questions will show you the right path to go down. If you can give me the answers to these I will be happy to investigate the potential avenues for you to look into. Obviously I cannot give you legal advice, but with the amount of time I have spent researching copyright laws in various jurisdictions over the past month (largely due to worrying about my own situation lol), I might be able to help.
For example. In my case, because the band who commited the infringement is Canadian and the infringement occured in the US I can seek litigation in either of those countries (Not the UK). Because of the laws regarding regestration of copyright in the US, litigation would not be an option there because I would not be able to reclaim attorneys fees. In Canada I can, therefor I could find a Canadian attorney willing to accept the case on a contingency basis providing they feel it is winable. Because of the extent of direct plagiarism that has occured, I can accuse them of 'willing' infringement which carries more severe consequences for the infringer.

If you wanted to send me any specific details regarding your issue or comparissons, you can PM me and I will give an honest opinion.

-Matt-

AndyJ · Post by **AndyJ** » Sat Sep 01, 2012 7:46 pm

Hi Mattdens and WatchingPlanes,
Here's a report of a case which might encourage you both in your separate quests: New York Times

WatchingPlanes · Post by **WatchingPlanes** » Mon Sep 03, 2012 1:03 pm

Thanks Andy, very intersting and encouraging that in the face of evidence justice can actually prevail against the Big Boys.

Matt - I'll pm you with my email. Send me one and I'll reply with a powerpoint containing stills from the two videos and a summary of the story. I'll also send links to the original songs and an mp3 of a hybrid demo illustrating the similarities in the music. I couls also go into the chord substitutions used, but they may be heavy going.

Kris

mattdens · Post by **mattdens** » Thu Sep 06, 2012 9:19 pm

Just an update for you all.

I have been in talks with the bands manager and have agreed a settlement of 20% royalties, full credit and $3500 compensation.

Thank you all for all of the help and advice you have given me, it is very much appreciated.

-Matt-

AndyJ · Post by **AndyJ** » Fri Sep 07, 2012 8:05 am

Hi Matt,
That's excellent news, well done. And thanks for keeping us up to date. I'm sure Kris (WatchingPlanes) will be encouraged by that.
Andy

WatchingPlanes · Post by **WatchingPlanes** » Fri Sep 07, 2012 9:55 am

Yeah, great stuff - there is justice!