The Idea-Expression Dichotomy - Case Study Example

Topic: IP Law Question 1 In the light of the first circumstance, where Trotsky intends to give permission to use the tune for cheap advert clothing, and McVanney’s objection to the same; a number of issues come in place. As per the idea-expression dichotomy, it is well understood that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”1 This stems from the fact that vesting copyright in ideas might lead to monopolization of the same, and thereby hinder creativity. Copyright subsists in the expression of the author’s idea rather than the idea itself. Therefore, irrespective of a fundamentally new and different idea being in place, what counts is the investment of skill, judgment and labour in creating the work. Since copyright vests in the expression of the author’s idea, in cases of literary, dramatic or musical work the same is to be recorded or fixed in a permanent medium. It may be in form of writing or in any other form, whereby latest technological innovations of recording of fixating involuntarily come under the sphere of copyright protection.2 Going by the fact that Trotsky simply produced the idea for the tune which was later worked upon by both of them, but not recorded or fixed the expression for the same; it comes to the forefront that his idea for the tune per se is not copyrightable, as per the cardinal rule of fixating expressions in a permanent form. This is the first instance where Trotsky might fall weak in his defense, as his idea for the tune, however original it might be, does not attract copyright protection for the abovementioned reasons. Therefore, Trotsky might not avail of such a copyright in his idea for the tune, and thereby transfer the rights vested in the music to be exploited for an advert of cheap clothing. While there are doubts regarding Trotsky’s authorship for copyright purposes for the idea of the tune, his contribution in producing the final outcome cannot completely be ignored. For Trotsky had collaborated with McVanney in modifying certain aspects of the song to be used later on in the performance of the same, and this opens up further discussion on joint authorship and co-ownership. The author of a work is defined in the Copyright, Designs and Patents Act 1988 as the person who creates the work. There are particular provisions dealing with a situation when there are several authors involved in the creation of a work. This is more so in case of literary, dramatic, musical and artistic works.3 A work is a work of joint authorship if it is ‘a work produced by the collaboration of two or more authors in which contribution of each author is not distinct from that of the other author or authors.’4 Moreover, there are three conditions to be fulfilled in determining whether a work is a work of joint authorship. (i) First, it is necessary to prove that each of the authors contributed to the making of the work. It however, does not require that the individual contributions from both sides be equal in proportions.5 This first criterion is satisfactorily taken care of in this situation as both the songwriters followed the collaborative process followed earlier for their hit “A Passport for the Tram”. (ii) Secondly, for work to be considered under the ambit of joint authorship, it has to be produced through a process of collaboration between the authors. Meaning thereby, that while starting the work, there must have been a common plan or design outlined by the authors (even if it is not captured in a very rigid sense).6 This also calls for the necessity of a shared goal between co-authors. Unless there is a shared goal and a shared outcome of the joint efforts pitched in by various authors, they shall not be considered as joint authors for purposes of copyright protection. For example, where one person writes a poem and another person translates the same into another language, the author of the original poem would not fall under the ambit of joint authorship.7 Here too, this condition is fulfilled as both Trotsky and McVanney collaborate to produce more music as was the case with their earlier hit. (iii) The last condition is that the individual contributions must be so distinct or separate from each other so as to lead any of the authors to point out their respective efforts and claim it to be theirs. It must result in an integrated whole.8 Though in this case Trotsky produces the idea for the tune, and McVanney pens down the lyrics, the ultimate collaboration they both enter into in giving the final outcome i.e. modified version of the song to be performed; they would be considered joint authors for the final work. Case laws suggest that even if only group member was accountable for the composition of all the songs, a joint authorship could be determined by showing “a significant and original contribution to the creation of a musical work.” Herein, the court took the degree of creativity involved to determine how much of an impact each contribution had on the song as a whole.9 Along similar lines a recent case Neudorf vs. Nettwerk Productions Ltd.,10 discussed whether Mr. Neudorf was to be considered the co-owner of the copyright in four musical works which appeared on phonograph record containing performances by one of the defendants, Sarah McLachlan.11 This case apart from discussing other conditions of joint authorship highlights one of the most important factors that play a role in determining whether a contributor is to be considered a joint author of a musical work. Where on one hand the Court found that Neudorf’s contribution was original and significant in its expression, with the same being merged into the song; it also established that Mr. Neudorf could not successfully prove that he and MsLachlan had intended each other to be a joint author.12 That intention is paramount, and the same can be inferred either from a pre-existing, written agreement between the parties or from their behavior and dealings with each other. This is evident from the stand taken by the Court in the case Childress vs. Taylor13, wherein, while stating that joint authorship did not necessitate an understanding of the legal issues of the relationship between the joint authors; the parties nevertheless implicitly regard their task as that of a joint authorship. In the light of the abovementioned criteria and case laws, McVanney can claim on the grounds of joint authorship. Although joint authorship does not come in place where a creative work is comprised of various aspects that require exercise of different levels of mental ability, in this case Trotsky simply produces the idea for the tune, which is later on worked upon by both him and McVanney resulting in the final outcome. That final outcome is to be considered for the purpose of determining copyright protection and resulting rights therein, for it also reflects the intention of the both to act as co-owners. Consequently, a joint owner of copyright cannot do acts outside the scope of the co-ownership; meaning thereby, he can license or permit others to use and exploit the work only with the consent of his co-owners.14 The second part of the essay deals with the concept of fair use. Under the various defences that a person up for not infringing copyright in another’s work, fair use or fair dealing of the original work for most part ought to be for purposes of research or private study (Section 29(1)), for criticism or review (Section 30(1)) and for the purpose of reporting current events (Section 30(2)) of the Copyright Act 1911.15 Parody has long been protected under the ambit of fair use if it fulfills the four factors that render it as non-infringing of the original work. It has its base and essence in deriving from the copyrighted work of another, either to ridicule and criticize the original work or to send out a broader social message.16 A parody is effective and comes under ‘fair use’ only if it “at least in part” comments on the underlying work’s substance or style, as noted by the Court in the Campbell case.17 Also the way the copyrighted material has been dealt with is important. The parody should have used previously published work for the transformation of the same, needs to be obtained in a fair, legitimate manner; most importantly the quantity and quality of the original work lifted for parodic purposes should be in proportion to and along the lines of what the parody wants to convey. The parody should not in an adverse way affect the market popularity of the original and it is best defended under law if the defendant can prove that he had taken parts of the original work, and re-contextualized and added a fresh angle or perspective to the original work.18 It needs to be understood that the determination of a parody entitled to come under fair use, is a matter of degree is to be judged on its own merits, on a case to case basis. There are various case laws which take different stands on this issue. In the very famous case of Leibovitz v. Paramount Pictures Corp.19, a photograph of a nude pregnant celebrity in a ‘Venus Pudicia’ pose was the subject of controversy, with question being raised as to whether the superimposition of Leslie Neilson’s face on the nude pregnant body of the original work and related aspects, would qualify to be a parody, and thereby defended as ‘fair use’. Here the parody was judged by the court to be fair use.20 Then again there are ways to distinguish how much of a parodic element is permissible. Indecent use of characters and substance from original work to sell off the new work as parody cannot qualify for fair use.21 In yet another controversy related to parodies, the federal court in SunTrust Bank v. Houghton Mifflin Co.,22 gave it verdict against The Wind Done Gone, written as a parody to Gone With the Wind, and established that there was not much transformation in the new work, and it was more of a sequel than a parody, in its own right. However, the publisher of the new work Houghton Mifflin put up a strong defense that only that much was borrowed from the original so as to transform it into a parody, giving it fresh perspective (as against the claims of the court that the new work had ripped off the essence of Mitchell’s classic). Subsequently, the earlier decision was overturned by the US Courts of Appeal for the 11th Circuit, judging the work to be a successful parody.23 It needs to be kept in mind that parody attacks the subject-matter of copyright, whereas in other forms of criticism such as satire, the subject of copyright acts as a tool for targeting a much bigger target which does not confine itself to just the copyrighted-work.24 Donovan’s work is primarily a satirical show which has an element of parody in it. If the distinction spelt out in Campbell v Acuff-Rose25 is to be followed, then Donovan’s work might not be able to claim defence of fair use. Though the parody alludes to McVanney’s work, it is difficult to see which part of McVanney’s work it criticises. As laid down by the US Supreme Court, the difference between a satire and a parody is that; while a “parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.26 Consequently, it seems unnecessary that Donovan should use McVanney’s work at all as his work is primarily a satire which contains an element of parody. If he can establish the need for having done so, while showing that his work fulfills the four factors mentioned above, he might claim defence under fair use. But otherwise, McVanney’s case is stronger and he can still claim protection from copyright infringement. The third part of the essay is to determine whether the article contained in the magazine “Music Scandal” (which reviewed McVanney’s work) could claim to come under fair use or not. The article simply quoted the first two verses of the lyrics, and the only comment to be found was the statement “How pathetic and banal a songwriter this shows him to be.” This clearly infringes McVanney’s copyrighted work as going by the four factor test of fair use, this article uses too much of the original work without adding anything transformative or fresh in a way of reviewing or criticizing it. The doctrine of fair use cannot apply here as the review of the original work is bare minimal in this case. In the words of Robert Walker LJ, “if the fair dealing is for the purpose of criticism that criticism may be strongly expressed and unbalanced without forfeiting the fair dealing defence.”27 It is clear that the magazine simply lifted off parts of McVanney’s work and using superficial adjectives tried to pass it off as a review. But the magazine failed to show what exactly in the verses where they trying to criticize. This could hardly make any connection with the readers, or convey any message to them. McVanney can successfully sue the magazine for the same. BIBLIOGRAPY Books:- Torremans Paul, Holyoak and Torremans on Intellectual Property Law, 4th ed, 2005, Oxford, New York. Bently Lionel, Sherman Brad, Intellectual Property Law, 1st ed, 2001, Oxford University Press, New York. Cornish, W.R., Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 3rd ed, 2001, Universal Law Publshing Co. Pvt. Ltd., Delhi. Web Sources:- Copyright Limitations, Exclusions, and Compromises, available online on http://www.edwardsamuels.com/illustratedstory/iscsmall/isc8small.htm, accessed 09/08/2010 The Music Industry Represented in Copyright Law, available online on http://www.musicforlondon.co.uk/MusicContractsSite/copyright_uk_second_part.htm, accessed 09/08/2010 Lesperance, Robert, Joint Authors: When are Collaborators in a Musical Work Entitled To Share In The Copyright Of The Work?, available online on http://www.lmlaw.ca/pdf/joint_authors.pdf, p.2, accessed 10/08/2010 Slater, Eric S., Legal Insights: Is it fair use? It depends, available online on http://pubs.acs.org/subscribe/archive/ci/31/i09/html/09legal.html, accessed 10/08/2010 Simon, David A., Reasonable Perception and Parody in Copyright Law, p.3, available online on http://works.bepress.com/cgi/viewcontent.cgi?article=1021&context=david_simon, accessed 10/08/2010 Reynolds, Graham, A Stroke of Genius or Copyright Infringment? Mashups and Copyright in Canada, available online on http://www.law.ed.ac.uk/ahrc/script-ed/vol6-3/reynolds.asp, accessed 10/08/2010 Read More