(Composed music): How much accidental similarity is OK?

So…I recently composed a song. Distributed the sheet music, let people have recordings of my song. I was quite proud of it.
Except, now there’s a problem. I have discovered, too late, after the fact, that part of my song rather closely - unintentionally - resembles part of another song already produced, copyrighted and published by another author. (Similarity in music only, not lyrics.)
I realize this question is almost impossible to answer without providing a recording of my song so that people can listen to it and listen to this other author’s song (which I don’t want to do,) but…just how much accidental, unintentional similarity is OK? I don’t want to get sued for “plagiarism” over what is completely unintentional similarity.
Is “50% similarity” OK? 65%?

Also, just out of sheer curiosity, how exactly would such a legal suit work, anyway? Does a court judge sit down, put on headphones, listen to two pieces of music, and then say, “Too similar! Rule in favor of plaintiff?”

I’m curious about what others may say.

My cursory AFAIK is that there is a 5 note test on the main melody line in a song. If you have repeated their melody for 5 notes in a row you should think about a different way.

Melody can be copyrighted but not harmony.

So make sure your melody is not identical. The 5-note rule is probably a good metric.

There is no rule. It depends on how similar the two tunes are, which can be pretty subjective, and if someone is willing to sue.

The most obvious example is the Doors’ “Hello I Love You.” The Kinks considered suing due to the similarity to their “All Day and All of the Night,” but decided not to bother.

I’ve also noticed that the opening of the Grateful Dead’s “Ripple” is very similar to “Any Dream will Do” from Joseph and the Amazing Technicolor Dreamcoat - more than five notes, certainly - but no one seemed to sue over it.

Copyright law restricts copying. Independent creation is a recognized concept, so there is no restriction at all on “unintended similarity.” But if you copied it unconsciously or unintentionally, that’s still copying. To benefit from the doctrine of independent creation, it truly has to be independent.

However, if someone decides to accuse you of infringement, there’s s twist. Yes, they have to prove copying, but if there’s no direct evidence of copying, they might instead only have to show that you had access to the work and that there’s substantial similarity.

I would be very wary of relying on things like this. While some courts might apply a test like this in a particular circumstance, these are not actual statements of law.

“Blurred Lines” was found to have been substantially similar to “Got to Give It Up” based on its feel and sound without having to find any copying of the melody.

Here’s an example of why you can’t copyright harmony: The Pachelbel Rant.

'OK, thanks, but this still sounds like “Legal murkiness that could go either the plaintiff or defendant’s way.” It all still seems to come down to what is **substantial **similarity and what is not.

Could you imagine all the lawsuits that could be flying around over the 8, 12, or 16-bar blues chord progressions? Or the 50s chord progression ( I vi IV V)?

Well, yeah. There’s no formula. And substantial similarity is a question of fact, not law, which makes it even more treacherous. The jury decides whether there’s substantial similarity. And in both the “Blurred Lines” and the “Stay With Me” cases, I’m not all that happy how the fact-finding came out.

With intellectual property in the state it’s in now I for one am not worried about being stolen from. I’m also not worried about infringement if I keep to my 5 note rule.
That’s me. I would be damned lucky to have someone make a lot of money over my idea or vice versa. Those are two ways in the door. Either way it means something made a lot of money, and there will be some recognition.

The “Stay With Me” case turned on only three notes.

From my research here and listening to the song: It seems that there was not a legal action. They put Tom and Jeff Lynne as writers on the song after being contacted.

“Stay with me (because you’re)
All I need”

The similarity is in the two vocal lines with three notes each, following in the same manner as “Won’t back down” ("…Stand my ground…")

6 notes, not 3. I’m not saying it’s law but if he would’ve kept it at 3 there would be no Tom and Jeff on that tune.

You’re right to refrain from saying it’s not law. I would be surprised to hear an actual lawyer make such a confident statement.

There is no number of notes per the law. 5 notes came up in a previous case and it stuck in my mind, maybe Michael Jackson. It has common sense to it, so I use it in my musical ruminations. Blurred lines is another thing. It’s a combination of production and musical elements, (And not melody) which couldn’t be coincidental. But the first three notes of a song can’t be protected if the song goes somewhere else. There would be no way to enforce that in our system.

Keep humming. You won’t be asked to pay unless it’s a hit.

Were you aware of this other piece of music before?

Yes, but it wasn’t an imitation.

Now, if Music Song A# ends up being too similar to someone else’s copyrighted Music Song B#, but Music Song A# was distributed without any monetary gain whatsoever - in other words, distributed for free, not sold - how much, or what for, would the producers of Music Song B# be able to sue the producers of Music Song A# for?

A copyright holder does not have to prove actual damages for infringement, under the statutory damages provision, Section 504© of the Copyright Act of 1976, 17 U.S.C. §504©.

The court may award $750 to $30,000 for each work infringed. If the infringement is found to be willful, that can be increased to $150,000 for each work. There may also be injunctive relief, including handing over ownership of the work.

Almost every copyright holder that has properly registered his or her works seeks statutory damages, which makes “monetary gain” an irrelevant issue.