Intellectual property law problem question

Section A

Intellectual Property Law Problem Question

Advice To Blondzone

In advising Blondzone it will be established whether Blondzone owns the copyright of the literary, musical and artistic works of the song ‘I Can't Believe You Sold Your Soul (But That's The Way Life Goes) and the album cover. Once this has been established it will then be made known if or not Bad Apple have infringed such copyrights. After this has been determined any defences which bad apple may raise will be considered. In addition, it will be shown whether or not Zak and Blondzone have a right to privacy in relation to the publishing of Zak's drug habit by the newspaper or whether the newspaper have a freedom of expression. Accordingly, if this is established it will then be shown whether Zak can be awarded compensation by way of an injunction or damages or both.

In order to advise Blondzone, it is essential that we first establish whether they are the owners of the copyright of the song ‘I Can't Believe You Sold Your Soul (But That's The Way Life Goes)'. By doing so, it will then be determined whether they own the copyright of the literary works of the lyrics of the song, the musical works of the music in the song and the artistic works of the cover of their album. Literary works are defined in section 3 (1) of the Copyright, Design and Patents Act 1988 as: - “any work, other than a dramatic or music work which is written, spoken or sung and accordingly includes (a) a table or (b) a compilation, (c) a preparatory design material for a computer program, and (d) a database. In the case of University of London Press v University Tutorial Press it was held that “the word original does not mean that the work must be an expression of original or inventive thought, instead the originality that is required is related to the expression of thought.” Therefore, the fact that Majid wrote the lyrics would appear to come within this category as its his expression of thoughts.

Musical works are defined under section 3 (1) as “a work consisting of music exclusive of any words or action intended to be sung, spoken, or performed within the music.” In the case of Sawkins v Hyperion Records it was held that “the essence of the music is combining sounds for listening to and the sound of music is intended to produce effects of some kind on the listeners emotions and intellect.” Once again, it does appear that the Music for the song produced by Zak comes within this category. Artistic works are defined under section 4 (1) as “a graphic work, a photograph, a sculpture or collage, a work of architecture or a work of artistic craftsmanship.” Again, it would appear that the album cover would come within this category of artistic works.

However, because Majid used some of the words to the chorus from the song ‘That's life' written by Albert John it may indicate that the work is not original. This is because Parliamentary copyright lasts for 50 years from the year in which the work was made (i.e released to the public domain). Therefore, the fact that it has merely been 49 years since the song ‘That's life' was released to the public domain may suggest that Blondzone do not own the copyright. Yet, like this case it does appear to be an expression of thought as it is merely a few words in the chorus that is the same. And as put by Day.C; “even if you produce something which is similar to someone else's work, you will still own the copyright in your own work.” Thus, it in this sense it would appear that Majid does own the copyright to the lyrics.

Also, the fact that Majid sold his existing and future literary copyrights to Sweet & Sour Records may suggest that Blondzone do not own the copyright of the lyrics. However, “the general rule is that the author is the first owner of copyright if the work is a text work, music, a dramatic work or an artistic work.” Therefore, this would mean that even though Majid sold his copyrights to Sweet & Sour records, he will still have ownership of the copyright in relation to the Lyrics. Under section 9 (1) of the Act, authorship is the person who creates the work.” This is shown in Walter v Lane where a reported who took a shorthand report of a speech was held to have exercised sufficient skill to be treated as author of the resulting report. Therefore, it seems that Blondzone would still have ownership of the copyright works.

It must therefore be established whether there has been an infringement of such copyright and whether there are any defences in which can be raised by Bad Apple. Under section 16 (1) of the Act, the rights of a copyright owner will be infringed if “the work is copied, copies of the work is issued to the public, the work is lent or rented to the public, the work is performed, shown or played in public, the work is communicated to the public and an adaption is made of the work or any of the above is done in relation to an adaption.” In IPC Media Ltd v Highbury-Leisure Publishing Ltd (No 2) it was found that copyright infringement is the infringement of an intangible right in the expression of the idea. The idea is not protected and copying the idea is not an infringement of copyright. Therefore, it will depend upon whether the work, which was copied, was merely an idea and not an expression of an idea. Yet, what is clear is that Bad Apple has copied the work of Blondzone and it has been released to the public.

As for the artistic works that is; the copying of the album cover, it does appear to be an infringement. In Designer Guild Ltd v Russell Williams Textiles Ltd it was held by Lord Millett that “the first step in an action for infringement of artistic copyright is to identify those features of the defendants design which the plaintiff alleges have been copied from the copyright work.” In relation to the album cover it would appear that the features have been copied as there is a picture of Bad Apple holding Blondzone's album cover. And as said by Torremans; “the nexus that needs to be shown between the original work and the alleged copy should be in terms of expression.” What's more, in George Jones v Tower Hamlets London Borough Council & Samuel Lewis Housing Association it was shown that a lot will obviously depend upon the extreme nature of the facts of the case. Thus, it does seem likely that Bad Apple has infringed the copyright of the artistic works in the album cover as a substantial part was copied as it was the whole of the album cover which was included in Bad Apples single cover.

Accordingly, although it appears that the literary, musical and artistic works have been copied, such copying must be substantial and it cannot merely be a slight part that has been copied. The approach was set out in the Designers case by Lord Millett who stated that “once the judge has found that the defendants design incorporates features taken away from the copyright work, the question is whether the work which has been copied is substantial.” In accordance, the question which must be asked is “what is the work for the purposes of infringement and has the defendant utilized the whole of the claimants work or substantial part thereof.” It does appear that a substantial part of the album cover was copied as it was the whole of it which was copied onto Bad Apple's single cover, however it is less clear whether a substantial part of the literary and music works have been copied as Bad Apples has merely used some of the words of the chorus and samples of the melodies, yet it will depend entirely upon the facts and circumstances of the case.

If it is found that Blondzone own the copyright of the literary, artistic and musical works and that such copyright has been infringed by Bad Apple, Bad Apple may be able to raise the defence of fair dealing under sections 30 (1) of the Act which subsists of fair dealing for “the purposes of criticism or review.” This is because Bad Apple is merely criticising Blondzone's works. In addition, as shown in Hubbard v Vosper by Lord Denning; “you must consider the number and extent of the extracts and ask are they altogether too many and too long to be fair.” This would not appear so in the instant case as it was only a small amount which was copied and so it seems likely that Bad Apple will succeed with this defence.

As for the exploitation of Zak's private diaries and the photographs of Zak attending a drugs anonymous session, it is likely that Zak will be able to prevent this from being published under his moral rights. The Performances (Moral Rights) Regulations 2006 gives “performers a paternity right and an integrity right.” Therefore, although there is a right to be identified when they are performing, there is no right of identification in such a way that it is not reasonably practicable. Moreover, Zak also has a right to privacy as it will be an infringement of his human rights under the Human Rights Act 1998. however, the newspaper also has a right to freedom of expression and so it must be determined whether these publications will be genuinely private and not in the publics interest to be published.

In the case of Douglas v Hello it was held that the wedding was by no means a fully private affair and that the right of privacy had to be balanced with the right of freedom of expression. The limited amount of privacy left could, at the trial stage be compensated by the award of damages.” Therefore, it is likely that Zak will be successful in his right to privacy about his drug habit and of attending a session of ‘Drug Users Anonymous'. This was further demonstrated in Campbell v MGN Ltd where it was held that a duty of confidence arises whenever the person subject to the duty is in a situation in which he or she knew or ought to know that the other person could reasonably expect his or her privacy to be protected. This would appear the case in this situation as it would reasonably be expected that Zak's attendance at the drug meetings should not be exploited,Although, the fact that he is a drug user may be exploited.

In addition, as illustrated in Coco v Clark Megarry J makes it clear that the test to use in order to determine whether or not the issue of confidentially arises will be an objective one. He states that “it seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence.” And as such it seems likely that the issue of confidence arises in Zak's situation. If it is found that Zak's confidence had been breached then he will be entitled to a remedy such as an injunction in the Coco case. However, if the newspaper has already published the story then he shall be entitled to damages such as in Nichrotherm Electrical Company Ltd v Percy where the court can award damages “in addition to or in substitute for an injunction.” Accordingly, it is likely that Zak will receive either an injunction or damages or both.

Overall, it seems as though Blondzone do own the copyright of the literary, musical and artistic works of the song and album cover. Nevertheless, the fact that the literary works were partly taken from the song ‘That's life', this may not suffice since the work would not be original However, if it is shown that Blondzone changed it so as to make it look original then they would own the copyright. The question is therefore, whether it is merely an idea or an expression of an idea, of which the decision will be up to the courts, but the fact that it is an an expression of thought as it is merely a few words in the chorus that is the same might give Blondzone a successful case.

What's more, the fact that Majid sold the copyright works to Sweet & Sour records will be irrelevant as the owner will be the original owner. If it is found that Blondzone do own the copyright in their works, it must then be shown whether there has been an infringement by Bad Apple for copying certain words in the song as well as some melodies and for using their album cover as part of his single. It does appear likely that Bad Apple has infringed all of the copyright of the musical, literary and artistic works, yet it is unclear as to whether a substantial part has been copied. Nevertheless, even if it is found that Bad Apple has infringed the copyright, he may use the defence of fair dealing in that he was merely criticising the works of Blondzone and it is evident that this is what he is doing. Therefore, in regards to this it would be likely that Bad Apple would not be liable for infringement.

Finally, in relation to Zak's right to privacy, it seems that the photographs will not be able to be published as it is genuinely private that Zak attends drug meetings, however it is likely that the newspaper will be able to publish the fact that Zak takes drugs as it would be in the publics interest and the newspaper have a right to freedom of expression. It will then be determined whether Zak shall be entitled to any compensation by way of an injunction or damages.

Bibliography

Journals:

Australian Copyright Council, Ownership of Copyright, (February, 2006), Available [Online] at: www.copyright.org.au/pdf/acc/infosheets_pdf/g058.pdf

Day. C, Does Copyright Subsist in Your Work? (October, 2007), Available [Online] at: http://www.lawdit.co.uk/reading_room/room/view_article.asp?name=../articles/6009-does-copyright-subsist-in-your-work.htm

Books:

Bently. L, Intellectual Property Law, OUP Oxford, 3rd Edition, (2008)

Torremans. P, Hollyoak and Torremans Intellectual Property Law, OUP Oxford, 5th Edition, (2008)

Contemporary intellectual property: law and policy By Hector L. MacQueen, Charlotte Waelde, Graeme T. Laurie

Cases :

Campbell v MGN Ltd

Coco v Clark

Designer Guild Ltd v Russell Williams Textiles Ltd

Douglas v Hello

George Jones v Tower Hamlets London Borough Council & Samuel Lewis Housing Association

Hubbard v Vosper

IPC Media Ltd v Highbury-Leisure Publishing Ltd (No 2)

Nichrotherm Electrical Company Ltd v Percy

Sawkins v Hyperion Records

University of London Press v University Tutorial Press

Walter v Lane



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