Intellectual Property Rights in Media Applications - Essay Example

(a) I will advice Jones that for a claim of copyright infringement against Nasty Guys (the "Guys to prosper, it is necessary to consider the following issues: (1) whether copyright protection subsists in the work; (2) who owns the copyright over the work; (3) whether the act of the Guys is a restricted act so as to constitute infringement; (4) whether the restricted act was done to a substantial part of the work; and (5) whether defences to copyright infringement may be invoked by the Guys. The Copyright, Designs and Patents Act 1988 (the "Act") provides in Section 1 (1) that copyright is a property right which subsists in original literary, dramatic, musical or artistic works, and sound recordings. Section 3 of the same Act likewise provides that "literary work" means any work, other than a dramatic or musical work, which is written, spoken or sung. A "dramatic work" includes a work of dance or mime; while a "musical work" means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. Section 5(1) of the Act provides that "sound recording" means - (a) a recording of sounds, from which the sounds may be reproduced, or (b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced. In the given problem, copyright subsists in the lyrics of the song 'Harlequin', the musical composition (musical notes) of the same song, and the sound recording of the song. Copyright protection therefore subsists on the foregoing works such that any infringement thereof gives the copyright owner or author of the works a claim or cause of action against the Guys. Under Section 9 of the Act, the "author" means the person who creates the work and in case of a sound recording, that person (the author) shall be taken to be the person by whom the arrangements necessary for the making of the recording or film are undertaken. Thus, in the case of the lyrics of the song 'Harlequin', the writer of the song is the author of the literary work while the composer is the author of the musical work. In the given problem, therefore, Jones is the author of the lyrics of 'Harlequin' as a literary work while at the same time he, as composer of the song, is also the author of the musical work. The author of the sound recording of the song on the other hand is Arcadia, Jones' music publishing company. Parenthetically, if the Guys does not have a license from Arcadia to use the sound recording, then the Guys may also be liable for copyright infringement of Arcadia's sound recording. Nevertheless, Jones will therefore be advised that as copyright owner of both the lyrics and musical composition of the song, being the sole author of the said lyrics and musical composition, he may have a cause of action against the Guys for infringement of his copyright over in the literary and/or musical work. As copyright owner, I will advise Jones that under Section 16 of the Act, the owner of the copyright in a work has the exclusive right to do the following acts in the United Kingdom - (a) to copy the work; (b) to issue copies of the work to the public; (c) to perform, show or play the work in public; (d) to broadcast the work or include it in a cable programme service; and (e) to make an adaptation of the work or do any of the above in relation to an adaptation. Those acts are the "acts restricted by the copyright". Furthermore, under the same Section, copyright in a work is "infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright" "in relation to the work as a whole or any substantial part of it" "either directly or indirectly". In view of the foregoing provisions, I will advise Jones that the Guys will only be guilty of copyright infringement if the 6-second music sample from Jones's 'Harlequin' used by the Guys' in their song 'Hard Harlequin Harry' constitutes substantial copying of Jones' literary and musical work. Parenthetically, regardless of the issue of substantial copying, the Guys may probably be held liable for issuing copies of the work to the public; or performing the work in public; or broadcasting the work; or making an adaptation of the work. Under British law, the issue of substantiality is more of a qualitative question rather than quantitative.1 The determination of whether a substantial portion of the work has been copied will have to be decided on a case to case basis.2 The qualitative approach means that particular weight will be given to the copying to the most important parts and interesting portions of the original work claimed to be copied. In the Hawkes & Sons case, it was held that the inclusion of a 20-second portion of the main melody of the march 'Colonel Bogey' in a newsreel lasting for four minutes is substantial copying. Specifically, it was held that the using of eight bars of a musical piece amounted to a copying of a substantial part of the original musical piece since the eight bars were so recognisable. Furthermore, in a similar case of Newton v. Diamond (349 F.3d 591), the issue was whether the incorporation of a short segment of a musical recording into a new musical recording, or sampling requires a license to use both the performance and the composition of the original recording. The Newton case consists of a six-second, three-note segment of a performance of one the plaintiff's compositions. The defendants-performers who did the sampling are members of the musical group Beastie Boys. While they obtained a license to sample the sound recording of the plaintiff's copyrighted performance, the defendants did not obtain a license to use Newton's underlying composition, which is also copyrighted. The district court ruled for the defendants ruling that no license to the underlying composition was required because, as a matter of law, the notes in question-C-D flat-C, over a held C note-lacked sufficient originality to merit copyright protection. The district court also held that even if the sampled segment of the composition were original, defendant's use was only de minimis and therefore not actionable. The decision of the lower court was affirmed on the ground that the use was de minimis. In view thereof, it appears that the 6-second sound sample may probably be de minimis and thus, the Guys may not be held liable for copyright infringement, as the copying was not substantial enough. However, as Jones' lawyer, it can be argued that while the sound sample lasted only six seconds, the portion copied represents the most important and most interesting portion of the infringed works. I will also advise Jones that based on the facts disclosed in the problem, it appears that the Guys may not be able to raised any defence such as consent, fair use or public interest involved, among others. Hence, the Guys may be held liable for copyright infringement to Jones so long as it can be shown before the court that the copied portion lasting for six seconds from the original work is not de minimis but represents the most important and most interesting portion of the infringed works. And as such, I will advise Jones that copyright infringement may give him a right to a civil action for damages, criminal, administrative and self-help remedies against the Guys. In addition to the economic rights available to Jones, I will also advise him that he can also exercise his moral rights over the works pursuant to Sections 77 to 85 of the Act. These moral rights includes his right to be identified as author or the paternity right; and the right to object to derogatory treatment or the integrity right. In summary, I will advise Jones that as the writer of the literary work (lyrics) and composer of the musical works (musical composition), he may have a probable cause of action for copyright infringement against the Guys provided that it can be shown that the copying was substantial and the portion substantially copied, regardless of length, represents the most important and most interesting portion of the infringed works. (b) I will advice Arcadia that for a claim of copyright infringement against it to prosper, it is necessary to consider the following issues: (1) whether copyright protection subsists in the work involved; (2) who owns the copyright over the work/s; (3) whether Arcadia's act is a restricted act so as to constitute infringement; (4) whether the restricted act was done to a substantial part of the work; and (5) whether defences to copyright infringement may be invoked by Arcadia. The Copyright, Designs and Patents Act 1988 (the "Act") provides in Section 1 that copyright is a property right which subsists in original artistic works. Section 4 of the same Act likewise provides that "artistic work" means a graphic work irrespective of artistic quality, and a work of architecture being a building or a model for a building. A "building" is considered to include any fixed structure, and a part of a building or fixed structure while a "graphic work" includes any painting, drawing, and any engraving, etching, lithograph, woodcut or similar work. In the given problem, copyright subsists in the house door (as work of architecture) of Neil and Les Galeyger ("the brothers") and in the graffiti (as an artistic or graphic work) by the artist Bonksy ("the artist"). Copyright protection therefore subsists on the foregoing works such that any infringement thereof by Arcadia gives the copyright owner or author of the works a claim or cause of action against Arcadia. Under Section 9 of the Act, the "author" means the person who creates the work. Thus, in the case of the door of the brothers' house, it is the architect who is the author of the house which is considered as work of architecture work while the artist Bonsky is the author of the graffiti as artistic or graphic work. Thus, if the architect did not assign or transfer to the brothers his copyright over the work of architecture being a building, then ownership thereof remains with the architect and the brothers do not have personality to sue Arcadia for copyright infringement with respect to their house as a work of architecture because the brothers are not the copyright owners of the said work. Arcadia, thus, may validly raise this defence. In the case of Chabot v. Davies (1936) 155 LT 525, it was held that the architect's plan might validly fall within the category of architectural works and models.3 In the said 1936 case, Crossman J observed that there was a copyright infringement of an architectural plan and shop-front elevation owned by the architect by the construction of a similar shop-front reproducing the architect's plan. It was stated in Cuisenaire v. Reed (1962) 5 FLR 180, [1963] VR 719, that the elevation had been infringed specifically the blueprint containing a plan and elevation of the architect. Thus, it can be argued that the copyright over architectural works vests upon its author, the architect, and not upon the owner of the house or building. Parenthetically, in the case of Hundertwasser Haus (I ZR 192/00) (BGH (Ger)) Bundesgerichtshof (Germany) 5 June 2003, the appellant appealed against the dismissal of his claim that his copyright had been infringed by the respondent in a case involving a building in Vienna designed by appellant. Appellant had been distributing photographs of the building via a postcard. Respondent distributed a picture (with similar perspective) of the same building but it was not sourced from appellant as in fact it was photographed from a flat opposite the building. In allowing the appeal, it was held that the German Act limitation on works viewed from the public street or place is unavailing. However, subject to any contractual provision between the brothers and the artist relative to the transfer or assignment of copyright, the latter who owns the copyright over the graffiti (as an artistic or graphic work) may probably have a claim for copyright infringement against Arcadia for failure of the latter to secure prior written consent before the album was released to the public. I will advise Jones that under Section 16 of the Act, the owner of the copyright in a work, i.e., the artist who owns the graffiti, has the exclusive right to do the following acts in the United Kingdom - (a) to copy the work; (b) to issue copies of the work to the public; (c) to perform, show or play the work in public; (d) to broadcast the work or include it in a cable programme service; and (e) to make an adaptation of the work or do any of the above in relation to an adaptation. Those acts are the "acts restricted by the copyright". Furthermore, under the same Section, copyright in a work is "infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright" "in relation to the work as a whole or any substantial part of it" "either directly or indirectly". In view of the foregoing provisions, I will inform Arcadia that they might be liable to the artist for copyright infringement of the graffiti as an artistic or graphic work for showing such work in public without the prior consent of the copyright owner. Be that as it may, Arcadia can possibly raise the defence of incidental inclusion. Section 31 of the Act provides that a copyright in a work is not infringed by its incidental inclusion in an artistic work. The artist on the other hand may argue that the inclusion was not incidental but deliberate considering that Arcadia commissioned the photographer to do the pictorials. Thus, in the Hawkes and Sons case, it was ruled that copyright infringement took place and the accidental inclusion defence did not apply because the 28 bars of the original were included deliberately. In summary, I will advise Arcadia that the artist may probably have a cause of action for copyright infringement against it unless it can be shown that the inclusion of the graffiti was not deliberate but incidental. Arcadia may however go after the photographer for reimbursement on the possible ground of breach of contract, if any. As to the door of the house, the brothers may not have legal personality to sue for infringement since the brothers are not the copyright owners of the work of architecture absent any contractual stipulation to the contrary. REFERENCES Chabot v. Davies (1936) 155 LT 525, (1936) 3 All E.R. 221 Cornish, W. Cases and Materials on Intellectual Property. Sweet and Maxwell, 3rd Ed.:London, 2000. Cornish, W. Intellectual Property: Patents, Copyright, Trademarks and Allied Rights. Sweet and Maxwell, 4th Ed.:London, 2000. Cuisenaire v. Reed (1962) 5 FLR 180, [1963] VR 719 Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] Ch 593 Hundertwasser Haus (I ZR 192/00) (BGH (Ger)) Bundesgerichtshof (Germany) 5 June 2003 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 All ER 465 Torremans, P and Holyoak, J. Intellectual Property Law. Butterworths, 2nd Ed: London, 1998. Read More