Luther Kirkey owns the copyright on a musical composition, “Michigan Winter Blues.” Li Advertising Services LAS) has produced a radio advertisement for one of its clients. The advertisement has a background melody a tune identical to Michigan Winter Blues. LAS had hired Margaret Nero, a composer, to write the music for this advertising spot, and Nero had provided LAS with this background melody.
Kirkey has sued Nero for copyright infringement. Nero testified in court that she did not deliberately copy Michigan Winter Blues. She admitted, however, that she owned a recording of the song and though she said she had not listened to it in several years, it was at one time one of her favorites. The court believed her testimony that she had not intentionally copied Kirkey’s copyrighted work and that she had acted in good faith.
a.Should Nero be held liable for copyright infringement?
b.Might Kirkey have a cause of action against LAS? If so, on what grounds?

Question

Quizplus · Accepted Answer

The Answer is a.Yes. Although Nero acted in good faith, the evidence nonetheless indicates that Nero had infringed upon Kirkey’s copyright. We would apply the access plus similarity test. Nero clearly had access to the copyrighted work she admitted this in court) and the work she produced was identical to that of Kirkey’s copyrighted work thus meeting the “substantial similarity” test). The fact that her copying was inadvertent and unintentional does not relieve her of liability for copyright infringement.
b.Yes. Kirkey could sue for vicarious liability. This arises where the defendant: 1) had the right and ability to supervise the infringing acts of another and 2) had an obvious and direct financial interest in the exploitation of copyrighted materials. That certainly seems to apply to LAS, who had the ability to supervise the activities of the composer it hired and who had an obvious and direct financial interest in the music she created.

Luther Kirkey Owns the Copyright on a Musical Composition, “Michigan