The Protection of Business Personalities' Rights - Assignment Example

 Evaluate to what extent intellectual property law adequately protects the rights of entertainment business personalities Intellectual property law is mainly aimed to protect the interest of the true or genuine workers or professionals. This is applicable to all the fields including entertainment industry where there is possibility of intellectual theft. The genuineness of ideas created by music directors, directors and actors is the sole foundation on which the total fate of the industry relies. However it is unfortunate to find the piracy of the materials or ideas of the talented artists by some other artists for the sake of either earning money or becoming popular among the general public. The pirated goods generally include CDs, computer software and videos. This practice violates the interests of both consumers and inventors. The rate of produce will certainly go up once it comes to the hands of consumer. At the same time, the inventor or producer feels aggrieved that others have been able to capitalize on his work which involves a considerable investment of time and money. Hence this violates the basic principles and interests of original talented artists in entertainment industry. The intellectual property law guarantees the persons rights to have their own qualities, but at the same time the right of expression of press people also gets clashed with this and in case of England the right of freedom of expression dominates the right of privacy of artists (Attorney-General v Guardian Newspapers Ltd,1990)1. However in some situations the right of privacy of artists was well protected by the intellectual property rights (La Forest J in R v Dymont,1988)2. This case concerns about invasion of privacy and wrongful disclosure of private information. It stresses the importance between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. A proper degree of privacy is very much essential for the well-being and development of an individual. Article 8 states that the right of privacy of information is to be 1 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. 2 : La Forest J in R v Dymont [1988] 2 SCR 417, 426. protected and should be in tune with the common law. Similarly the article 10 declares that the right of freedom of information is also crucial and there should be balance between the article 8 and article 10 (Reynolds v Times Newspapers Ltd,2001) 3. Some legal instruments in the world like intellectual property law provide sufficient justice to the genuine artists. Intellectual property law is one of the most important legal document which certainly protects the rights of the artists in the entertainment industry (Bainbridge, 2006). However there has been a feeling that whether this law is able to protect the interests of the artists in an efficient manner? For answering this one may have to study and analyze the nature and purpose of intellectual property law in entertainment industry and to determine the efficiency parameters and draw backs of the existing law on intellectual property law while protecting the interests of the artists in the entertainment industry. The term intellectual property reflects the idea that this is the product of the mind or the intellect, and that intellectual 3 : Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 203-204. property rights may be protected at law in the same way as any other form of property. Intellectual property law explains the ways of protecting the property including copy rightable works, ideas, discoveries, and inventions 4. There is a lot of scope in finding conflict with implementation of intellectual property law in case of licencing and sponsiorship which is quire common in both sports and entertainment industry. The regulation of intellectual property in cases of sponsorship and licencing during 2006 Common walth games was analyzed by Tim Golder and Wendy Burnett (2006) which can be applied to the issues relating to the entertainment industry 5. 4: The Lectric Law library’s lexicon on “Intellectual Property”. http://www.lectlaw.com/def/i051.htm. 5 : Tim Golder and Wendy Burnett. (2006), Intellectual property protection and enforcement at major events: Practical lessons learnt from Melbourne 2006 Common wealth games. Journal of intellectual property law & practice. Oxford University press, http://jiplp.oxfordjournals.org/cgi/content/abstract/jpl201v1. The term "intellectual property" denotes the specific legal rights which authors, inventors and other Intellectual Property holders may exercise. Intellectual Property Law balances the rights of inventors of products, processes or original work in entertainment industry with the demands from society. It mainly includes law of copyright, trade marks and law of passing off. Copyright law, aims at protecting original works of authorship. The Copyright Act states that works of authorship include computer software, software manuals, ads (text), musical works like songs, advertising jingles, and instrumentals and Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works. Hence any person or company violating the rights of the personnel in the entertainment industry can be punished under court of law. Over all, the intellectual property of entertainment industry is mainly protected by copyrights and trademarks. Intellectual property law aids in regulating the entertainment contracts which deal with the ownership and use of this property. The copy right law helps a lot in protecting the interests of the singers in a significant way. A separate copyright exists in each legally recorded version of a song. If any body violates these regulations, he will be punished severely. Copyright law also protects the interests of the dancers. An innovator of choreography can claim a copyright for that choreography once it has been recorded as video recording. Others can use the same only with the permission of the copyright holder. A key aspect of copyright law as applied to the entertainment industry is that of derivative works. A copyright holder initially controls who may create a work based on the artist's original work. For instance, a film studio may create a screenplay based on a novel only with the novelist's, or other copyright holder's, written permission. This control is critical to authors and screenwriters, whose works can be adapted to several other media—films and sequels, television series and movies, audiotapes, toys, games, T-shirts, and so forth. Similarly, a patent is granted for an invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time. Patent law protects inventions and processes (utility patents) and ornamental designs (design patents). The proper regulation of patent law is highly useful for prosperity of all sectors including health sector (Carlos M. Correa, 2006) 6. There are strict requirements for the grant of utility patents and design patents to maintain the quality of new innovations. A trademark is a distinctive sign which is used to distinguish the products or services of different businesses including entertainment. Trademark protection is available for words, names, symbols, or devices that are capable of distinguishing the owner's goods or services from the goods or services of others. The infringement of trade law leads to severe punishment as reflected in some cases (Mena Lo and Florence Lam, 2006). Similarly, a trade secret is a secret, non-public information concerning the commercial practices of an entertainment business whose public disclosure may be considered as illegal and hence the law punishes ------------------------------------------------------------------ 6: Carlos M. Correa, (2006), Pharmaceutical inventions : when is the granting of patent justified? International Journal of Intellectual property Management. Vol 1, issue 1&2, 4-21. those people indulging in its violation. If any person violates this law, strong punishment will be applied and hence results in protection of rights of entertainment personnel. However in some cases where there is no proper substance, the intellectual property law or trade mark law will not provide any compensation. For example, in case of Ruiz Picasso V OHIM (2006), this was reflected. The faily members of famous Spanish artist Pablo Ruiz Picasso are the proprietors of the word “PICASSO” and filed complain against registration of another trade mark “PICARO” in Office of Harmonization of internal market (Trade marks and designs) but lost the case as the court ruled that there was no likelihood of the trade mark according to the Article 8 (1) (b) of the Community trademark regulation no 40 /94. There are pitfalls of entertainment industry in the form of wrongful disclosure of information and violation of copy right and Trademark acts (Biederman et al., 2001). It is also saddening to note that there were some cases reflecting the violation of copy right law by big companies like Sony corporation (Amanda Bronstad, 2005) 7. Hence there is an urgent necessity to increase the level of awareness among the people regarding the provisions of the intellectual property law and then they can analyze the same for specific situations in the entertainment industry. The ideas developed by Ann Harrison (2003) which covers all major aspects including types of record deal, management deals, publishing deals, manufacture, distribution, marketing, merchandising, touring, royalties, copyright, sample clearance, piracy and licensing certainly aids in this direction. Similarly the knowledge about commercial appropriation of personality which provides a framework for analyzing the disparate aspects of the problem of commercial appropriation of personality and traces and the discrete patterns of development in the major common law systems is of immense use for protecting the rights of entertainment personnel (Beverley -Smith, 2002). 7: Amanda Bronstad. (2005) "Century City law firm stakes ground in intellectual property". Los Angeles Business Journal. August 1, 2005. http://www.findarticles.com/p/articles/mi_m5072/is_31_27/ai_n14931239. People should be made aware about the principles of “Privacy, property and personality” and detailed comparative analysis of the laws relating to commercial exploitation of personality in France, Germany, the United Kingdom and the United States. The difficulties in reconciling privacy and personality with intellectual property rights in an individual's identity and in balancing such rights with the competing interests of freedom of expression and freedom of competition has to be understood which plays a vital role in defending the genuine interests of artists in the entertainment industry (Beverley –Smith, Ohly and Schloetter, 2006). In case of Douglas V Hello Ltd (2003), the privacy of actors were severely affected due to illegal and wrongful disclosure of information in the form of their wedding photographs. This was also in violation of trade mark act as the exclusive jurisdiction of publishing photographs was given to another company i.e. O.K. Ltd. The provisions of data protection act (1998) were also violated in this case. The judgment has gone in favor of Douglas and O.K. Ltd. as it ordered payment of compensation to them by the Hello Ltd. In this way the intellectual property law protects the rights of entertainment personnel. The violation of data protection act (1998) and wrongful recording of events and violation of copyrights in video recording is highly punishable as it was reflected in some previous cases (Elvis Presley Enterprises V Passport videos, 2004). However there were some problems associated with the implementation of copy right, patent and trade mark rights as they are different in nature (David Worrell, 2004) 8. Several times it happens in such a manner that the intellectual private law is intended for protection of rights of actors and directors and their creative ideas would be patented with them only. Those who violate the same would be severely punished. However, there was a strong feeling that the right of intellectual property clashes with the right of freedom of expression especially when the 8: David Worrell "License to profit: could licensing your intellectual property provide the extra capital you've been looking for?". Entrepreneur. Jan 2004.http://www.findarticles.com/p/articles/mi_m0DTI/is_1_32/ai_n6026337. information regarding the actors get published in news papers. In case of Campbell V MGN Ltd (2004), the privacy of Campbell was affected by the Mirror news paper of MGN Ltd, as argued by the Campbell. But after observation of facts, the final judiciary authority divided the news paper acts in to five categories ruled that even though Campbell might have undergone personal loss as far as the privacy is concerned, but there were no strong grounds on which the MGN Ltd had committed mistake in the first two clauses 9. However the judge ruled that the breach of confidentiality was found in other three categories relating to the attendance at anti narcotics campaign and secret photography. The right of freedom of thought and expression has to be protected for all citizens. The present case concerns one aspect of invasion of privacy: wrongful disclosure of private information. It can 9 : campbell v MGN [2004] UKHL 22 6 May 2004 at paras 1-71. also be examined under breech of confidentiality and violation of data protection act (1998). The case involves the familiar competition between freedom of expression and respect for an individual's privacy. Both are vitally important rights. Neither has precedence over the other. Hence efforts must be made not to misutilize the advantage given by the system in the form of intellectual property law in the entertainment industry. A proper degree of privacy was felt highly essential for the well-being and development of an individual (La Forest J in R v Dymont, 1988). Proper balance between right of privacy and right of freedom of expression is needed. The issues relating to the right of privacy of information were also discussed in detail by Coco v A N Clark (Engineers) Ltd (1969) and Wainwright V Home Office (2003). Overall, it may be concluded that the intellectual property law play vital role in protecting the rights of the entertainment personnel in terms of the their privacy in their personal matters. The importance of regulation of intellectual property law is quite enormous in protecting the sense of innovation in any sector (Douglas Clement, 2003) 10. The need of the hour is to strike a balance between the right of privacy of artists and right of freedom of expression of press which should be in tune with the intellectual property law and common English private law. Complete awareness among the artists of the entertainment industry about the important provisions of different forms of intellectual property rights, right of freedom of expression and right to protect privacy is highly essential so that they can fight for their rights in a legitimate and most efficient manner. --------------------------------------------------------------------- 10: Douglas Clement "Creation myths: does innovation require intellectual property rights?". Reason. March 2003.http://www.findarticles.com/p/articles/mi_m1568/is_10_34/ai_98125298. Bibliography: Ann Harrison. (2003), Musc : the business – The essential guide to the law and deals. Virgin books publication, P: 290, ISBN: 1852270136. Bainbridge, David,I. (2006), Intellectual property 6/E, Longman publication, P:896, ISBN-10: 140580159X. Beverely Smith, Huw. (2002), The commercial appropriation of personality (Cambridge studies in intellectual property rights), Oxford University Press publication. P: 402. ISBN: 0521800145. Beverley –Smith, Ohly and Schloetter, (2006), Privacy, property and personality, Oxford University Press. P:284. Biederman, Donald E., Silfen, Martin E., Berry, Robert C., Pierson, Edward P. and Glasser Jeanne A. (2001), Law and Business of the Entertainment Industries: Fourth Edition. P : 864, Praeger publishers. ISBN: 0275969835 Catherine Colston and Kirsty Middleton(2005), Modern Intellectual Property Law, 2nd ed. London 2005, Cavendish Publishing. Coco v A N Clark (Engineers) Ltd [1969] RPC 41, 47-48. Douglas V Hello Ltd. 2005. EWCA CIV 595. Elvis Presley Enterprises V Passport Videos. (2004), 357, F 3.d, 896, 9th Cir.(Cal), Feb 06, 2004 (Amended dissent). La Forest J in R v Dymont [1988] 2 SCR 417, 426. Lionel Bently and Brad Sherman. (2004), Intellectual Property Law, 2nd ed. Oxford 2004, Oxford University Press. P:1234. ISBN: 0199264309 Mena Lo and Florence Lam. (2006), Trade mark invalidated on ground of copy right infringement.Journal of intellectual property law & practice. Oxford University press,http://jiplp.oxfordjournals.org/cgi/content/abstract/jpl203v1. Louis Aspinwall. 2006. Ruiz Picasso and others V OHIM. Bird &Bird. February 2006. http://www.twobirds.com/english/publications/articles/Ruiz-Picasso_v_OHIM.cfm#_ftnref2. Wainwright v Home Office [2003] 3 WLR 1137. William Cornish and David Llewellyn (2003), Intellectual Property – Patents, Copyright, Trade Marks and Allied Rights, 5th ed. London 2003, Thomson: Sweet & Maxwell. Read More