Sample Clearance / Music Copyright Question

Hypothetical:  Person A makes a demo recording of a song including an uncleared "sample" of an existing published sound recording.  A lets some people hear it, but does not sell or commercially distribut e the recording.  Considering there was an uncleared sample in the recording, A does not register the work.  I'd say this is an unauthorized derivative work, but it doesn't come to the attention of the sample owner (and is probably not wort h litigation in any event).

 

One year later, Person B comes out with a song that is substantially similar to A's song.  In addition to other strikingly similar elements, B's song uses the same exact sample as A's song.  A can prove B had access to A's song prior to the recording of B's song.

 

What do you do here?  I think this happens a lot in the worlds of rap and dance music, but I don't think the Copyright Act is really set-up to give A any assistance.  Any ideas on this one?  Thanks!

 

Mike Tucci

Law Offices of Mike Tucci