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Copyright infringement is a “strict liability tort,” which means the defendant doesn’t have to have intended to infringe to prove liability. A plaintiff must only demonstrate that the defendant had access to the allegedly infringed song, and that the two songs in question have substantial similarity.
Substantial similarity: whether or not the average listener can tell that one song has been copied from the other. This is the “ordinary observer test” - the hallmark of copyright infringement. The more elements two works have in common, the more likely they are to be ruled substantially similar. Essentially, the jury must decide whether the copying of protected elements was “too much.”
Proving substantial similarity in music cases is complicated by the fact that all songs carry two kinds of copyright, for composition and sound recording, that have to be evaluated independently.
Innocent or Willful Infringement? Factors into statutory damages, and whether expenses can be deducted from profits in determining profits awards.