Monthly Archives: February 2010

Theft by iPod – Millions of iPod users break Copyright Law

As the Digital Economy Bill makes its way through Parliament, one of the most controversial yet little-known provisions of copyright law is once again finding itself under scrutiny. The Government-Funded watchdog Consumer Focus has called for a change in the law which currently makes it illegal for iPod users to download their own CDs onto the MP3 player – after a survey of 2000 adults, it became clear that 17 per cent did not realise that doing so was against the law. Consumer Focus claimed that “the credibility of UK copyright law has fallen through the floor – millions of consumers are regularly copying CDs or DVDs and are unaware that they are breaching copyright law.”

This isn’t the first time that Consumer Focus have raised this issue. Recently, they carried out a survey of Intellectual Property Laws in 16 countries, including the USA, Australia and China, and found that UK copyright laws are the most out of date and that they “needlessly criminalize millions of people” as a result.

Copyright is hugely important for the music industry as it is the main protection for an artist’s work and the main way in which record companies make money. Copyright protects music as soon as it is recorded without the need for registration, and the copyright in a song or entire album belongs to either the Band or their label, giving them the right to control if and when their music is copied and made available to the public to allow them to charge fees for doing so, which, so the theory goes, would encourage other artists to carry on making new music. 

But UK copyright law has not been able to keep up with the pace of technology. In the 80s, many LPs carried a piracy warning that “Home Taping Is Killing Music” as cassette recorders allowed copies of albums to be handed out without any control by the Music Industry under the fear that LP sales would fall if people stopped buying LPs that their friends copied for them, which they did. We are in an even worse situation now as the Music Industry is terrified of the impact that illegal downloading is having upon CD sales.

The Copyrights, Designs and Patents Act 1988 states that it is an infringement of the Artist or Label’s copyright if any third party copies a “work” or issues a copy of a work to the public, meaning that anyone who copies a song or an album could not only be sued but could also be prosecuted. This was fine when all we had to worry about were cassettes, but the Act never saw MP3s or the iPod coming, which have seen consumers transfer much of their CD collection onto an MP3 player so that they can carry it around with them. The public at large thinks that this is perfectly legal, but what many don’t appreciate is that by burning a CD onto your PC or iPod, you are actually copying it, which is illegal even if only you listen to it!

The Government did flag this up as an issue as part of the Gowers Report on Intellectual Property a few years ago and has already recognized the need for a change in the law, to deal with “format shifting”, but that change was due to be ratified by the start of last year. Downloading from iTunes is legal, as you’re paying for the copy of the song or album which you download, but when you pay for a CD what you’re actually permitted to do is listen to it in your own home and that’s about it.

Changing the law to recognise “format shifting” from CD to MP3 would do a lot to clarify the situation and make consumers aware of exactly what is and isn’t permitted or can be copied. The real problem here, and one of the reasons which the law hasn’t yet been changed, lies with large-scale downloaders who either download thousands of songs without paying for them or who copy and sell pirate versions of major releases. This would still be illegal, even if copying your own CDs onto an iPod wasn’t.

Neither the record companies or the Government will want to follow the black letter of the law and take action against an entire generation who is growing up with an iPod rather than a CD player, and no-one has ever actually been prosecuted for doing so. Recognising Format Shifting may well precipitate another shift – in public opinion towards respecting copyright law.

Government Abandons Plans to Disconnect File-Sharers from the Internet

Against massive public opposition, Lord Mandelson’s extremely controversial and heavily criticised plan to disconnect internet users who use “peer-to-peer” technology to download and share media content such as games, movies and music has been dropped from the proposals set out in the hotly contested “Digital Economy Bill”. A petition on the Number 10 website asking the Prime Minister to intervene in Lord Mandelson’s plans seems to have worked, with a statement issued on February 23rd stating that “We will not terminate the accounts of infringers – it is very hard to see how this could be deemed proportionate except in the most extreme – and therefore probably criminal -cases.”
 
This news will be music to the ears of Human Rights campaigners who have described cutting users off from the internet as a violation of their right to correspondence and freedom of expression. This is, however, only one side of the argument. Debate on these issues will become more prominent as the Digital Economy Bill makes its way through Parliament, and as many in the Entertainment Industries begin to nail their own colours to the mast – earlier this week, Simon Cowell, Paul Greengrass and Terry Pratchett (amongst others) delivered a letter to parliament urging that the Bill be passed.
 
The Bill began life around the time of the Digital Britain Report, which was made public over the course of 2009. The report set out the government’s vision for a “knowledge economy”, with as much of the country as possible having access to broadband to allow them to participate in the growing global network. One of the other major concerns, however, was how the Govenernment would look to support and protect content created by the music, gaming and film industries, all of who had been severely hit by falling profits and a growth in illegal downloading of copyright-protected material. Something had to be done, and in the light of so-called “three strikes” policies beginning to find favour in the EU, the original suggestions in Digital Britain of dealing with the problem via slowing down access to the web were eventually toughened to include disconnection for persistent offenders.
 
The Entertainment Industry was thrilled, but many artists felt that it may be a step too far. Many critics of the bill noted that appeals against disconnection would not be straightforward and feared that cutting off users could take place without a Court Order.
 
We now find ourselves back in similar territory as when the report was first published, with the current strategy being that the government will use various “technical measures” to curb online piracy and only deploying disconnection as a measure of last resort, as well as setting out one feature which the report missed – a right of appeal . Downloaders will rejoice, and the Music Industry may now find itself forced to take action on its own by suing illegal downloaders for copyright infringement itself. The costs of doing so would usually be disproportionate, as the damages which an artist or record label would recover would normally be the amount which they would have charged to licence or sell any particular song or album. The costs in bringing such claims would be high and can quickly make them commercially untenable. Nevertheless, however, the major labels may feel the need to run a few such cases as a deterrent.
 
Whatever the case, the Government relaxing its position slightly does not mean that the problem of online piracy will go away. The response to it may take a number of different forms, depending upon how ISPs become involved in the new landscape, but the Entertainment Industry and the wider economy cannot afford to let the problem get worse. Legally, copying and/or sharing music, movies or software is copyright infringement, no matter what the argument as to artists and labels being overpaid. The music industry may yet be forced to go to war with its own fans.

Curiouser and Curiouser – Odeon refuses to show “Alice In Wonderland”

One of the year’s biggest cinema releases – Tim Burton’s much-anticipated take on Lewis Carroll’s “Alice In Wonderland” – may not be shown in the UK’s biggest cinema chain after a dispute broke out between Odeon Cinemas (part of the UCI Group) and Disney, the studio behind the film, over its DVD release.

Disney has told the chain that it intends to release the film on DVD only 12 weeks after its theatrical release (rather than the usual 17 weeks) as part of a long-term strategy to focus more on the home entertainment market as a distribution channel rather than Cinemas, which has led Odeon to announce that it will not show the film in UK, Ireland and Italy as this is where Disney intends to “fast-track” the DVD and Blu-Ray release.

The fact that Disney is looking move to the online and home entertainment market to generate revenue from new releases is no real surprise, but commercially speaking this may well be a case of them playing hardball with Odeon for the wrong reason.

The main reason why films and their subsequent DVDs or Blu-Rays are more often than not released worldwide on the same day is fairly simple – to combat piracy. If a movie is released in the US or any other specific territory first, then poor-quality camcorder versions tend to make their way onto the Web fairly quickly and it may well be the case that both box-office takings and DVD or Blu-Ray takings suffer. 20th Century Fox is familiar with this problem, having to deal last year with a DVD-quality leak of summer blockbuster “X-Man Origins: Wolverine” and this year with a leak of “Avatar”, now the highest-grossing film of all time. Over the course of the past week or so, an American “Cammer” received a prison sentence for copying (amongst a slew of other titles) Warner Brothers’ “The Dark Knight”.

Filming a movie on a camcorder and then making it available over the internet or via unauthorised and poor-quality DVD copies constitutes copyright infringement, both for whoever copies in the first place and again for anyone involved in getting those copies to the public. This is the other reason that Disney wants to release a DVD or Blu-Ray version of the movie as soon as possible – to reduce the need to buy illegal copies of the movie by making an official version available.

The window of time between the theatrical release of major studio films is becoming shorter all the time as technology becomes more available and the public becomes more willing to get hold of illegal copies to avoid having to pay a fairly high retail price for a DVD or Blu-Ray. However, “Alice In Wonderland” is a slightly different case as it is one of a growing number of “event” movies being released in 3D as well as conventionally. “Avatar” has already shown that 3D releases can now make up a large part of a movie’s opening weekend box-office gross, taking over $54 million of its $242 million total as of 21st December last year through 3D showings.

Whilst it is understandable that Disney will want to get the home entertainment version of the movie into retail stores as soon as possible, sacrificing five weeks in cinemas may well end up hurting its overall profits given that Odeon are the largest cinema chain in the UK with a large number of 3D screens. Leaving it in cinemas for another 5 weeks would allow Odeon to charge higher ticket prices for longer and may serve to build anticipation for the home entertainment release. At least one other cinema chain has said that it will show the film.

Odeon may well back down eventually, not wanting to lose out on one of the biggest releases of the year so far. However, it does have a number of other 3D releases this year to look forward to in the shape of Warner Brothers’ “Clash Of The Titans” and Paramount’s “Iron Man 2”. This stand-off may end up demonstrating exactly how many film lovers will be willing to pay to see a major release on the big screen when they know that DVD releases get closer and closer. In any event, both the theatrical and DVD releases will be “very important dates” for the industry.

Harry Potter and the Royal Courts of Justice

JK Rowling, author of the phenomenally successful Harry Potter series of novels, has confirmed that she plans to aggressively defend a claim of copyright infringement issued in the High Court which accuses her of plagiarising ideas and concepts from Adrian Jacobs’ 1987 book “Willy The Wizard – No.1 Livid Land” in “Harry Potter And The Goblet Of Fire”, published in 2000. The claim has been issued against both Rowling and her publishers Bloomsbury PLC, and was originally filed in June 2009.

The Harry Potter Franchise is a huge moneymaker for JK Rowling, her publishers Bloomsbury PLC and Warner Brothers, who make and distribute the film adaptations of the original series and as such it’s not hard to understand why the number of legal cases which have involved the character could now almost fill out the pages of a legal textbook in their own right.

In 2007, JK Rowling and Warner Bros. sued the publishers of “The Harry Potter Lexicon” in New York after a fan-made encyclopaedia on the series made its way into print after starting out as an unofficial online resource. This saw the Court rule in Rowling’s favour amid claims that the author intended to compile her own encyclopaedia and give the proceeds to charity on the basis that the book would go beyond what the US courts refer to as “fair use.”

2003 saw the character involved in setting a ground-breaking legal precedent when Rowling and Bloomsbury obtained an injunction against “the person or persons who has or have physical possession of a copy of the said book or any part thereof without the consent of the Claimant” to maintain secrecy on plot details in the run-up to the release of “Harry Potter and the Order Of The Phoenix”. Effectively, the injunction was made against “persons unknown”, which was previously unheard of in the UK.

What Rowling and Bloomsbury are being accused of is copyright infringement by way of “stealing ideas” from Jacobs’ book by, amongst other things, having the title characters “work out the exact nature of the main task of the contest which they both achieve in a bathroom assisted by clues from helpers, in order to discover how to rescue human hostages imprisoned by a community of half-human, half-animal fantasy creatures”. According to Jacobs, this amounts to the copying of “substantial parts” of the much shorter predecessor.

Ironically enough, this case could well turn on the facts of a case involving another modern literary phenomenon – the Da Vinci Code.

Copyright Infringement takes place when, as Jacobs claims, a “substantial part” of a previous copyright work is reproduced. What amounts to a substantial part is a matter of fact in each case and is a qualitative rather than quantative test, meaning that copyright can be infringed even if a new novel or play does not reproduce a single sentence from the original – the use of enough original elements of a story, if copied, can be an infringement.

In the Da Vinci Code case, author Dan Brown was accused (although not as a Defendant to the Claim) of “appropriating the architecture” of the Da Vinci Code from Michael Baigent and Richard Leigh’s 1982 book “The Holy Blood And The Holy Grail” – ironically both published by the same company. Brown had admitted that the earlier book had inspired him whilst researching and writing his novel, even going so far as to name one of the key characters after Leigh and Baigent, but had always denied copying the “central theme” of their work.

The Court (and subsequently the Court of Appeal) agreed with him, finding that whilst Brown did copy some material from “Holy Blood and Holy Grail”, he did not copy a sufficient amount of the actual text to have used a “substantial part” and had mainly used ideas and “generalised propositions” present in the first book (which did not constitute a substantial part of Brown’s story) rather than entire passages to write his own.

Assuming that Rowling hasn’t copied whole sections of the book in question, then this claim will probably fail. Copyright protects the expression of ideas rather than the ideas themselves – plotlines are rarely protected until they are expressed in writing. However, this case is slightly more risky to fight than Da Vinci Code as the “Willy The Wizard” book is much shorter; if parts of the text have been copied, then they are much more likely to form a substantial part of the story than a longer work.

That said, the claim is, in the words of the Claimant, based upon the alleged misuse of “ideas” rather than actual parts of the manuscript and Rowling’s statements notes very carefully that she had never heard of or had access to Jacobs’ book whilst writing “Goblet Of Fire” – this is a key consideration in cases of this nature and comes straight out of the “Da Vinci Code” judgment.

It’s hard to see how this claim could be successful. If the plot points and ideas raised by Jacobs were repeated very closely and the rest of the books had no other major plot twists, then the case may be decided differently. As it stands, however, it may well be that the Da Vinci Code judgment will in fact provide enough ammunition for an application to dismiss the claim immediately on the basis that it is “without merit”.

Even if the case did make it past this hurdle, it’s doubtful that the claim would be anything like the “billion-dollar” victory that the Jacobs family’s PR team expects it to be. It’s worth noting that Lawyers acting for Jacobs only added Rowling as a Defendant to the claim when they learned that they were not prevented from doing so by limitation (i.e. after the time limit for bringing a case has expired) – the recent “Whiter Shade Of Pale” case allowed a copyright claim to go ahead over 40 years after the release of the original song.

The more cynical amongst us may think that this a publicity stunt designed to focus attention on a case which seems to be less than a sure thing. Whilst JK Rowling has not been shy about entering into litigation to protect her own copyright, she has normally kept away from the media spotlight and was sued in 1999 by American author Nancy Stouffer for copyright infringement of her books “The Legend Of Rah And The Muggles” and “Larry Potter And His Best Friend Lilly”. That case was thrown out for different reasons (after allegations involving the fabrication of evidence) although it’s hard to see how this case will get past chapter 1.

The twist ending here may well be that, if this case were to go much further, it could end up costing Jacobs’ family far more than it’s worth.”

The Future of IP Litigation?

In January of this year, Lord Justice Jackson delivered his long-awaited review of the costs of Civil Litigation in the United Kingdom. Whilst much of the coverage on the Jackson report has centred on the future (or lack thereof) of the CFA or “No-Win, No-Fee” regime in relation to Personal Injury and Libel cases, a number of recommendations have also made on the possible reform of the Intellectual Property Litigation System.

IP Litigation is and always has been a comparatively expensive process, partly due to the fact that it deals with disputes which are usually factually and legally complex and often with issues which are worth a huge amount to the parties.

However, there has often been criticism (as with all Civil Litigation in the UK) of the fact that these high costs almost inevitably lead to a restriction from access to the Courts of both Intellectual Property Rights (“IPR”) owners who simply can’t afford to enforce their rights by bringing infringement proceedings and Defendants who are forced to deal with claims which could well be successfully defended if they could afford to instruct a Lawyer, hence the need for the Jackson review.

The review recognises the social and economic importance of IPRs as well as the need for the Courts “to enable parties to either assert or defend their IPR at an affordable cost”, confirming that the UK system of IP litigation is the “most costly” in the EU and that this “generates a large number of settlements”.

Some of the more significant and specific changes to the IP Litigation system which we may see include:

  • More active and robust case management in the Patents County Court (“PCC”) with a view to “narrowing the issues” in disputes more effectively and discouraging blanket denials of infringement without explanation,
  • The renaming of the PCC as the “Intellectual Property County Court” and the implementation of a new system of costs recovery which would see recoverable costs capped at £50,000 in Patent Infringement claims and £25,000 in other disputes as well as a limit of £250,000 imposed on the financial remedies available.
  • The implementation of a “Small Claims” Track for claims with a monetary value of less than £5,000 and “Fast Track” system  for cases valued at less than £25,000 in the PCC, along with the appointment of specialist Judges to deal with an increased number of cases and ensure a high quality of service
  • The introduction of guidance in the PCC Rules on pre-action conduct or a Pre-Action Protocol in IP disputes

 These recommendations have been largely welcomed, and with good reason. A draft “Code of Practice for Pre-Action Conduct in IP Disputes” was published some time ago and is often used as a template for how IP disputes are dealt with before they reach Court. Introducing a more formal procedure into the Civil Procedure Rules would at least encourage the disclosure of more information at the inception of a dispute to allow Parties to realistically assess whether a case needs to be litigated or can be resolved at a much earlier stage. Whilst this may serve to “front-load” costs, it will also almost certainly mean that they will ultimately be reduced by fewer cases actually making it into Court.

Similarly, more robust case management and new regimes for smaller-value claims will almost certainly allow many more SMEs to bring or defend IP proceedings, rather than being forced to settle and in some cases irrevocably damage their monopoly rights as well as leaving cases that are litigated presented in a much more transparent manner.

 Beyond these specific proposals, the Review also makes a number of other important recommendations for all civil cases, including:

  • The further encouragement of Mediation and other forms of ADR,
  • New incentives in the use of Part 36 Offers, including a 10% uplift on damages where a Claimant’s offer is rejected by the Defendant but ultimately exceeded at Trial
  • The creation of a “menu” system of disclosure to limit the costs of the process 
  • That Success Fees and After The Event Insurance Premiums as part of CFA or “No Win, No Fee” cases should no longer be recoverable

Again, these recommendations should come as good news for the smaller business who could not normally afford to litigate as well as larger IP-rich businesses faced with the rising costs of protecting their assets. In particular, focussed disclosure will allow parties to get to the bottom of the issues in a dispute much more quickly and affordably and the wider use of Mediation in IP cases (provided that the Mediator is an experienced IP practitioner) would allow for realistic and commercial settlements to be reached in a more collaborative environment.

However, although CFAs are comparatively rare in IP cases, many businesses may still only be able to actively enforce or defend their IPRs with such an arrangement in place. Many clients are now keen for their Lawyers to consider dealing with cases under a CFA as it provides them with a means of sharing their risk with their Legal Advisers. Whilst the arguments for limiting their use in Personal Injury, Libel and Privacy cases on the basis that they simply cost the economy too much are understandable, it may be fair to say that their wider use in IP cases may in fact encourage the take-up of the proposed new system in the PCC and encourage the further development of the “knowledge economy” through the continued creation of new IPRs where their owners are safe in the knowledge that they can take action to protect them in the event of infringement at a sensible level of commercial and personal risk.

It has to be said that, on the verge of a general election and in the wake of being received with horror by many Personal Injury and Media Lawyers, Lord Justice Jackson’s proposals may well not be implemented in their entirety. However, what is certain is that changes to the Civil Litigation system are on their way and it will be IP Lawyers’ best interests to develop innovative new approaches to ensure that creativity and innovation continue to flourish.

Paper Chases in the Virtual World may not be what they seem….

Paperchase, the country’s leading retailer of individual and design-based stationery, has spent the last 24 hours defending itself against allegations of plagiarism from artist “Hidden Eloise” after news of the dispute broke on the social networking site Twitter.
 
Eloise claims that her design “He Says He Can Hear The Forest Whisper” was “stolen” and “badly traced” onto bags, notebooks and albums by Paperchase, who have categorically denied any deliberate copying of her work, having purchased the artwork in question from what they describe as “well known central London Design Studio” amongst a number of others.
 
News of Eloise’s claims spread across the web like wildfire after a blog post which aired her frustration with no only the national chain but also the legal system, stating that “it was too expensive to even start talking with lawyers and the legal fees could break anyone with non-corporate products”. The post was subsequently picked up by noted English Science Fiction Author on Twitter and before long vitriolic commentary from other Twitter users forced Paperchase to issue a public statement as well as starting up its own account on Twitter for the first time to manage the fallout. The day ended with the products in dispute being withdrawn from sale whilst the issue was investigated for a second time.
 
It’s easy to see this incident as a cautionary tale and to rally behind the artist against a retail giant, but the reality is that cases like this are never as straightforward as they appear and in the age of real-time commentary over social networks can often see the finer details of a dispute distorted beyond recognition with alarming speed.
 
What Paperchase have been accused of is copyright infringement by reproducing Eloise’s work without permission. This kind of allegation is a fairly common issue for retailers to deal with who buy in designs or artwork from third parties – as copyright is an unregistered right, there is no centrally-available source of information which allows purchasers to look into the ownership of the material they buy. Normally, it would be fairly common for a retailer in this position to expect any seller of artwork who wasn’t responsible for creating it in the first place to provide an indemnity which confirms that, as far as the seller is aware, the material does not infringe any existing IP rights as well as compensating the buyer in the event that this proves to be the case.  Indemnities, however, are only useful if the third party can in fact cover any losses which a retailer may incur as a result of a subsequent claim.  
 
However, as ownership of copyright can only normally be proven through producing evidence of who actually created the material and when, there is always a risk in this kind of transaction that a disgruntled creator may come out of the woodwork and, in the age of the internet, create a huge public relations issue. Twitter is becoming very well-known as an easy method of both promoting uninhibited commentary on major issues on one hand (such as the Trafigura Super-Injunction and the Jan Moir debacle over a negative Article published in the mail on Boyzone star Stephen Gateley shortly after his untimely death), but also a method of generating a lot of negative commentary very quickly – especially when those making the comments are public figures forming part of the “Twitterati” such as Stephen Fry and Neil Gaiman.
 
What Paperchase have here is a double-sided issue – the allegation of copyright infringement and also an exercise in reputation management. The latter is being addressed very quickly by entering the discussion on Twitter through Paperchase’s own Twitter Account. Given that the Copyright Infringement has been very firmly denied, Paperchase could have dealt with the issue by taking legal action against Eloise in the form of a trade libel claim on the basis that their products have been “disparaged” in a manner which reflects negatively upon their manufacturer. Eloise’s defence to such a claim would in all probability be one of justification – that the accusations which she makes are, in fact substantially true.
 
The issue of whether one piece of artwork infringes upon the copyright of a previous work will depend upon whether or not a “substantial part” of the original has been used to create it. The Court treats this as a matter of fact on each individual case and the test is qualitative rather than quantitative in that it will depend upon the importance of the part which has been used to the original. Eloise would probably claim that the image of the girl in her original piece (which is the basis of the allegation) is the most important part of her work and with some justification in that her entire range of artwork uses the girl (in various forms) as a motif. It has to be said that the designs are very similar.
 
However, there is an important point which comments on the story are avoiding – although Eloise claims that it was Paperchase who copied the design, this seems completely incorrect. It was purchased from a Design Studio and in all likelihood, the actual copying took place either there or before they even laid eyes on the design – without further investigation, it;s impossible to say who was actually responsible for copying the original. It would have been much wiser for Eloise to have done some more work on narrowing down who may have been responsible than picking Paperchase as an easy and particularly media-friendly target.
 
Copying a design is, according to UK law, a primary infringement of copyright. Paperchase may ostensibly be liable for secondary infringement – dealing with copies of an original work in the course of business and selling them to the public. It is entirely possible for two designs to be produced simultaneously that look very similar and be equally protected by copyright, although this is evidentially unlikely.  However, although innocence is no defence to a copyright action – the fact that a business doesn’t know it’s infringing will not help them – unless the alleged infringer can show that they genuinely believed that copyright in the work in question had expired, what innocence does do is significantly curtail if not reduce to zero the amount of damages which could be recovered from Paperchase in any Court action.That Defence would depend upon, amongst other factors, the checks which Paperchase had made as to exactly who owned the copyright in the work in question.
 
Whatever the case, this has become an issue which Paperchase will have to deal with, although they do make the point that they thought that they had done in correspondence with Eloise in November 2009. It does seem a little opportunistic that, if this was the case, the allegations have been raised again. The explanation may be in Eloise’s own claim that she couldn’t afford lawyers to deal with the dispute. Ironically, a Lawyer would probably have told her to check her facts very carefully before making allegations of copyright infringement against a major retailer on a very public forum which could conceivably lead to a very large claim for damages in the event that she was wrong. To Paperchase’s credit, however, they have joined to conversation rather than try to strangle it.
 
The lessons to be learned from this are that retailers should always carry out thorough due diligence on any third-party artwork which they buy, that libel claims can apply just as much to businesses as they do to the rich and famous and finally that the impact of social media on reputation management cannot be ignored. Otherwise, the only paper being chased may be a Claim Form.

Men At Work hit Copyright problems “Down Under”

In a move which has sparked panic amongst the music industry, Sydney’s Supreme Court has ruled that Australian Band Men At Work copied one of the most recognisable parts of their biggest hit – 1983’s “Down Under” from a 1930s children’s song – Kookaburra Sits In The Old Gum Tree” – originally composed by Melbourne Schoolteacher Marion Sinclair. As a result, the Band stands to lose up to 60% of the earnings generated by the song, which was used in the closing ceremony of the 2000 Olympics and has become an unofficial Australian anthem.
  
“In this case, Men At Work were accused of reproducing “a substantial part” of Mrs. Sinclair’s 1935 song. The Band themselves claimed that the distinctive Flute melody was added after the song was written but did admit to basing it on Sinclair’s work, describing it as “a musical accident”. The Judge in Sydney, however, did not agree.
 
“This is the latest in a line of cases which appear to be defining how far artists can legitimately go when creating songs which are “inspired by” or based on another source.  It bears similarities to the high-profile copyright infringement claim brought by virtuoso guitarist Joe Satriani last year against Coldplay, whom he accused of using a melody from his instrumental “If I Could Fly” in the worldwide hit “Viva La Vida”, used to huge publicity by Apple in a campaign for the iPod.
 
In the UK, if copyright infringement can be demonstrated to the Court, then the usual award for Claimants would be either damages to the value of the royalties which the Artist would have made had they done a deal with whoever has allegedly copied their work or an “account of profits”. This would potentially see all of the profits made from a song being handed over. As any good litigator will tell you, taking a case to trial is a calculated risk. In fact, pursuing infringers of your copyright and deciding how far to push a case is a very complicated exercise in risk management. Any Judge, no matter how skilled, will make a judgment based on the case before him and there are very few cases where you can guarantee that they will find in your favour.

Music Copyright cases are notoriously tricky and the UK test for whether or not a song has been copied – whether or not a “substantial part” of the original has been used, is a matter of fact in each case. The position is very similar in Australia. Unless the songs in question really are identical or your release contains a sample of another song which hasn’t been cleared and you’re willing to gamble the profits you make on a well-known composition, then putting it out may be a risk not worth taking, especially in an industry where it’s increasingly difficult to turn a profit.

The last few years have seen some genuinely scary precedents set, all starting when George Harrison was found to have “subconsciously copied” an earlier song in his biggest hit “My Sweet Lord” and The Verve making very little profit from “Bittersweet Symphony” after failing to clear a sample from the Rolling Stones, who ironically found themselves accused of the same thing by kd Lang shortly thereafter.

If you are an Artist and your work has been copied, you may not be able to afford not to take action as a deterrent against further copying. You should always be willing to do so, but always willing to know how far you are willing to push your case and when to consider settlement. In this case, Men At Work fought the case to trial and lost in a major way. They used the melody from “Kookaburra” to, in the words of the Judge, give their song “an Australian” flavour which must now taste very bitter.