Spacebomb: Every rose has its thorn

Poison got sued, and Spacebomb’s lawyer is here to talk dirty to you.

October 25, 2011; 10:17 AM • by Matt Rawls

We continue our Spacebomb series with a lesson on copyright infringement from the Spacebomb Records legal counsel, Matt Rawls. On Wednesday, October 25, we present Top Knot Trio and DJ Snow Panda at Balliceaux, 10pm, free. Visit spacebombrecords.com for more info.

In case you missed it, 80s rockers Poison were sued earlier this week. Hair-metal and people getting sued? Oh baby, talk dirty to me.

Let me give you the background.

Before guitarist C.C. DeVille joined Poison, he auditioned for a band called Kid Rocker\*. Kid Rocker was run by bandmates Billy McCarthy and James Stonich. To help him prepare for the audition, McCarthy and Stonich lent a lot of Kid Rocker recordings to DeVille.

As it turns out, DeVille joined Poison instead of Kid Rocker. Soon thereafter, Poison released their debut album, Look What the Cat Dragged In, which sold 4 million copies, and rocketed the band to icon status.

Well, Messrs McCarthy and Stonich believe that four of Poison’s biggest hits, including “Talk Dirty to Me”, “I Won’t Forget You,” “Fallen Angel” and “Ride the Wind” were actually stolen from Kid Rocker.

So now we have old hair-metal dudes suing the hell out of each other? This is why I went to law school.

As The Hollywood Reporter article correctly points out, this specific case will probably deal more with the Statute of Limitations than the actual merits of the case. What that means is that Kid Rocker waited 25 years to bring this law suit, and that’s too long.

But, this gives us a great illustration to start talking about the underlying legal issue: copyright infringement. If you’re an artist, a record label, a fan of YouTube, or just a simple fan of music, then pay attention. You need to know this.

For this article, let’s pretend it is 1985, and Messrs McCarthy and Stonich are bringing this suit in a timely manner. Let’s look at how a copyright infringement action would be handled.

First, we need to go back to Music Law 101 for a quick refresher. A copyright is actually several rights bundled into one. For a song, a copyright grants the owner a bundle of rights, including the rights to:

• reproduce the song;
• distribute copies of the song;
• perform the song publicly; and
• make a derivative of the song.

In order to win a copyright infringement claim, the plaintiffs (Kid Rocker) must prove that the defendant (Poison) infringed (violated) one of the exclusive rights covered by a copyright.

The defendant can use a number of affirmative defenses, including statute of limitations and fair use. However, most infringement cases over a song essentially boil down to two questions: (1) how similar are the songs? and (2) how much access did the alleged infringer have to the original song? Basically, the plaintiff must prove the defendant heard the original song and then copied it.

The more similarity between the songs, the less the plaintiff must prove access to the original song. And conversely, the less similar the songs, the more the plaintiff must prove access to the original song.

So what would that mean for Poison?

Well, the most important question is how similar the songs are. Since (to the best of my knowledge) the original recordings of Kid Rocker’s songs aren’t available, this question is tough to address.

While I can’t speak for the similarity between the songs, the question of access may be difficult for Poison. If the plaintiff’s allegations are true, C.C. DeVille had significant access to the Kid Rocker songs. According to McCarthy and Stonich, C.C. DeVille borrowed recordings of all the songs they now claim he infringed. If the songs sound at all similar, this will be tricky for Poison.

As we discussed earlier, though, McCarthy and Stonich really should have brought this case sooner. Since they’ve waited so long, most likely Poison won’t have to pay anything.

I guess every rose really does have its thorn. [Editor’s note: Author’s sense of humor does not reflect that of Spacebomb Records or RVANews]

This article is an introduction to copyright infringement. In the next installment, Matt will dive deeper into copyright infringement issues. Specifically, he will look at sampling, YouTube problems, and the Digital Millennium Copyright Act.

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* There has to be a great joke here that I’m missing – if you come up with one, please post in the comments section.

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For more information, visit spacebombrecords.com or browse all Spacebomb articles on RVANews

October 25, 2011 10:17 AM 0