Intellectual Property Law in Entertainment Business - Case Study Example

Running Head: Intellectual Property Evaluate the extent to which the Intellectual Property Law meets the needs of the Entertainment Business At its base, the Intellectual Property Law is meant to protect the rights of authors who contribute creatively to society. These rights include the right over their work, thus the significance of this law in the entertainment business. What makes the application of the law difficult is the fact that while protection of the author and the work is maintained, this protective shield needs to be applied in such a way that it does not curtail future creative work by others. Thus, while the law offers a degree of protection for the intellectual property and capacity of authors, in this particular discussion musicians and those involved in the music business, there are fundamental problems and issues raised upon close examination of the said law. This paper is aimed at critically examining the significance of the Intellectual Property Law as it applies to music. The first half of the paper is a presentation of the copyright law, trade mark law, the law of passing off, and the law of confidentiality. In the second half, the author brings to light the practical and philosophical problems with the law as it pertains to the musician. The Law and Music Musicians and songwriters are individuals who thrive on creativity, originality and artistry. Not everyone seems to be endowed with the capacity to write good songs and compose good melodies. There is the need therefore, to safeguard their intellectual rights over their creations. Herein lies the significance of the Intellectual Property Law. This includes elements of the copyright law, trade mark law, the law of passing off, and the law of confidentiality. All of these elements are meant to ensure that the rights of an artist are protected, while ensuring at the same time that other artists are not prevented from practicing their right to free expression through music. It is at this point that the term copyright should be clarified to mean a “property right which subsists in accordance with this Part in the following descriptions of work – a) original literary, dramatic, musical or artistic works; b) sound recordings, films or broadcasts, and; c) typographical arrangement of published editions” (“Copyright, Designs,” 1988). In short, the term refers to a set of rights that can be exercised exclusively by whoever owns that right. For the artist, this is of particular importance, because it allows him or her, the exclusive right to do the following (“Copyright, Designs,” 1988): to copy the work; to issue copies of the work to the public; to perform, show or play the work in public; to broadcast the work or include it in a cable programme service; to make an adaptation of the work or do any of the above in relation to an adaptation; A cursory look at what the artist can do exclusively with his or her work shows a high degree of control over the artwork. In the case of the songwriter, to have control over the reproduction and distribution of both the original and possible alternate versions of one’s song is not only a good incentive to encourage further production, it also allows for the showcasing of one’s talents and capabilities while ensuring that credit is given where it is due. This is the essence of the intellectual property law itself. This is not to mention the exclusive right to showcase one’s talents through public performances. The point is that the idea of exclusivity primarily offers a two-pronged benefit to the songwriter: control over the work, and credit for the creation. These in turn, lead to further beneficial results: the writer is encouraged to continue producing original works; and the writer is ensured of whatever possible monetary or financial gains arising from the work. The most important element that is protected by copyright is the expression of ideas, and not the ideas themselves. This is in contrast to the law of confidentiality where the content is protected, as opposed to the form only. In the Trade Marks Act of 1994, a trade mark “means any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings” (“Trade Marks,” 1994). Signs include words, symbols, pictures, or logos, or a combination of these elements that discriminate the products or services of one trader from another. Trade marks are significant for the musician because band names, group logos, or symbols can and do serve to distinguish one musician from another, one band from other bands. Such marks can appear on album covers and shows, and thus function as effective signs that identify the musician and his work. The practice of establishing distinct marks paves the way for the law of passing off. For a claim of infringement on a trade mark to prosper, it must be demonstrated that: 1) the claimant’s services, as identified by the trade mark, possesses goodwill; 2) the actions of the accused, in putting up a similar mark, is deceptive, and; 3) there are damages to the claimant (“Trade Marks,” 1994). The damages to the claimant may take the form of actual or possible dilution or distillation of the former’s reputation, resulting from the misrepresentation that stems from the similarity between marks. The issue is essentially a matter of unfair competition. To gain profit or advantage as a result of using a mark that is similar to a successful or popular mark, is to engage in unfair practice for the simple reason that the imitative service or product is capitalizing on the success or popularity of another, by trying to pass itself off as the other. In music, the scenario can take the form of an upstart band utilizing a band name and logo that is strikingly similar to that of a popular band. The law of confidentiality seeks to prevent “the illegitimate use of confidential information by a recipient of information,” (Kaltons, 2004). For the songwriter, this particular area of intellectual property law is quite tricky in application. Take as an example an inspired songwriter who, before fixing the work, lets another person listen to it in the form of a rough recording. There is an assumption that the author has taken the third party into his confidence, and that for the third party to disclose the work in any manner is a breach of confidence. But is the situation really that simple? There are three criteria that must be met in order to ascertain a breach of confidence (Kaltons, 2004): the information must be confidential; the disclosure of the information must have been in circumstances which give rise to an obligation of confidence, and; there must be an actual or anticipated unauthorised use or disclosure of the information (Megarry J in Coco v A N Clark [Engineers] Ltd [1969] RPC 41) Difficulties with the Law The copyright law, trade mark law, law of passing off, and law of confidentiality all have certain difficulties attached to them. The establishment of infringement on both a songwriter’s copyright and trade mark demand the element of substantial similarity, among other things. In copyright infringement, what is essential is the similarity in the expression of the idea. In the case of Morrison Leahy Music Ltd. v Lightbond Ltd. (1993) EMLR 144, though a mechanical license was already obtained to release a remix of compositions by an artist, the latter argued against it, claiming that it was a derogatory treatment of his compositions (McKenna, 2000). Thus, the notion of substantial similarity leads to other issues, i.e. whether the similarity results in a disparaging or deprecating product, a result that is parallel to that of damages resulting from an action of passing off. In trade mark infringement, closely connected to the law of passing off, the essential factor is the similarity between marks that takes advantage of the presumably established goodwill of the infringed trade mark. Herein lies the difficulty: it is very difficult to establish goodwill, a difficulty that is further aggravated by the difficulty in proving damage. The case of Sutherland v V2 Music Ltd. was one such illustration of how establishing goodwill is problematic. The size of a claimant’s reputation is precisely where goodwill can be founded, whereby the law of passing off becomes forceful once goodwill and the damage to it are established (Ludbrook, 2002). In this particular case, part of the ruling stated essentially that the presence of clients and customers partly manifest sufficient goodwill, at least enough to demonstrate that damage can in fact be done to it. The law of confidentiality, as mentioned above, is problematic in application. When does information count as confidential? The obvious answer of course is, if the information is not in the public domain. More importantly, if the owner of the information believes that the disclosure of the latter would result in a negative and harmful consequence for him. However, the key point here is the subjective nature of the owner’s perception of confidentiality. The law, unfortunately, will not concern itself with trivialities. But the question is, when can something be considered trivial? Who determines the degree of triviality in a belief or perception? Philosophical Problems with the Law Considering the elements of intellectual property law discussed previously, it is noticeable that the law opens itself up to certain difficulties, especially when examined in light of questions that pertain to creativity, originality and artistry in a work, the qualities that are supposedly protected and ensured by the nature of the law itself, along with the accompanying exclusive rights. 1. Originality. The fundamental question that is raised is, “When can a work be considered original?” In music for instance, there are only twelve notes available to the songwriter. Among the twelve, certain notes are conventionally paired with some and not to others, a relational fact in music that is likened to a familial relationship, hence the term “chord families.” Given this fact, the songwriter is left with relatively fewer combinations than it appears. Hence, there is bound to be a repetition or perhaps even a duplication of chord progressions and melodies. Existing melodies will therefore be inevitably used again and again by other songwriters. Does this defeat the notion of protecting and promoting originality? Will there ever be an original work again? While the copyright law provides space for short lyrical phrases in songs to be used by others, will this provision not lead to a slippery slope? From this perspective, the law seems to defeat itself in emphasizing original expression while at the same time discouraging duplications in an area where such repetitions are inevitable. 2. Creativity. The problem of creativity is related to the previous problematic notion of originality. Is duplication or a repetition of a chord combination or melody, an automatic disqualification for creativity? If so, then the law once again is made to stand on its head. On the other hand, it might be argued that to simply write a song still demands a degree of creativity despite using existing combinations or melodies. Take parodies, for example. However, to argue in this manner entails salvaging the notion of creativity at the expense of originality. 3. Artistry. This is another notion that is closely related to the previous two, and is just as problematic. The fundamental question that arises out of this notion is, “Is it possible to uphold artistry without the notions of originality and creativity?” Put in another way, “Can a songwriter be artistic and not be original and creative?” Initially this appears unlikely, but it might be argued that working with existing works and perhaps modifying these entails a degree of artistry without necessarily being original or creative about it. Nevertheless, it can also be argued that such artistry is in fact impossible without being creative and original at the same time, since any such modification is made possible only through inspired creativity and a sense of newness. But if that is so, then it would be pointless to have a law that prohibits duplication, since any such duplication results in a new artwork already. In order to justify such a law, the latter would now have to appeal to moral grounds that demonstrate why duplicating another’s work does not have moral worth. 4. Truth. The law does not have the capacity to always guarantee truth. Take the circumstantial test for copyright infringement as an example. There are three elements that are necessary in order for the courts to declare an infringement: access to the song that is allegedly infringed; copying of the expression of ideas; and what is called “substantial similarity” between the infringing song and the infringed song. Notice that each necessary element is problematic in itself. Epistemologically, how is access to a song proven? The question can also be turned around: how can one prove that he or she did not have access to a song? As regards the copying of protected expression, it should be recalled that the independent creation of two similar songs does not constitute infringement. The key term is independent, but is it really possible to establish independent creation? If what is important is the use of one’s own imagination and creativity, and both songwriters are claiming that they both indeed used their own, how can this be determined and resolved with certainty? “Substantial similarity” is a highly subjective notion. Who can properly determine substantiality? Is the songwriter in a position to do that? Is it the judge in a courtroom? Is it the music expert? Or is it the average listener? It is evident that there are no hard and fast answers to these difficulties. Even if these necessary ingredients are taken together in order to be declared infringement as decreed by the copyright statute, it is possible to come up with two scenarios: one, a scenario wherein there is in truth no infringement, but is nevertheless declared as such; and two, a contrary scenario wherein there is in truth, actual infringement but is nevertheless declared clear of any such violation (Wilson, 1995). In the first scenario, a songwriter comes up with a melody and turns it into a song, and has it published soon after. It turns out that there was already an exact melody that existed in the same country prior to the creation of this particular work. The songwriter is sued for infringement and loses because it is easily established that he had access to the old melody by virtue of his being in the same country when the old one was released. Consequently, the ruling would be that there was an unconscious copying of expression, complete with both access and substantial similarity (Wilson, 1995, pp.55-56). Thus, even if there was no intention involved to copy the melody, there would be a ruling that makes a provision for an unconscious act of copying. But if there was no volitional act, can it still be said that there was true infringement? In the second scenario, a band member writes a song which their band plays at a local club. Members of a rival band incidentally were at the club at the time, and soon after, the said rival band releases a song of their own with the same theme, similar title, same first chorus line, and same five-note sequence in a certain portion of the song. According to the law, such elements are not enough to constitute infringement (Wilson, 1995, pp. 57-59). Thus, even if the rival band did actually infringe on the song that came out first, according to the law, that “fact” cannot be proven or shown. Conclusion The law, as it pertains to the music business, is also open to philosophic problems that in turn lead to practical problems for the artist. This appears to be true with most other areas where the law is in effect. Thus, it can be seen that upon closer analysis, the various areas in intellectual property law, while undeniably offering a degree of protection to the artist and his craft, still leaves itself open to fundamental questions despite its rigor. As far as the question of the extent to which it addresses the needs of the music industry in particular, and the entertainment business in general is concerned, it appears that there is much to be desired. As such, continuous examination and possible amendments are perhaps the way to address these questions. References Hull, J. (2001, January). Protection of Secrets in English Law. Retrieved December 15, 2005, from Denton Wilde Sapte, web site: http://www.dentonwildesapte.com/assets/P/ProtectionOfSecretsUKLaw_Jan2001. Kaltons Solicitors. (2004). An Overview of the Law of Confidentiality & Trade Secrets. Retrieved December 15, 2005, from Kaltons Technology Solicitors, web site: http://www.kaltons.co.uk/articles/193.cfm. Ludbrook, T. (2002, June). Recent UK High Court Decisions. Retrieved December 15, 2005, from web site: http://www.spr-consilio.com/Ludbrookhandout.pdf. McKenna, T. (2000). Where Digital Music Technology and the Law Collide – Contemporary Issues of Digital Sampling, Appropriation and Copyright Law. Retrieved December 15, 2005, from Journal of Information, Law and Technology, web site: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000_1/mckenna. United Kingdom. Office of Public Sector Information. (1988). Copyright, Designs, and Patents Act 1988. Retrieved December 15, 2005, from web site: http://www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_1.htm. United Kingdom. Patent Office. (1994). Trade Marks Act 1994. Retrieved December 15, 2005, from web site: http://www.patent.gov.uk/tm/legal/tmact94.pdf. Wilson, L. (1995). Making it in the Music Business. New York, USA: Plume. Read More