Divine Inspiration or Simple Plagiarism?

Looking around the popular media landscape, you may well be forgiven that genuinely new ideas are in pretty short supply, whether in music, film, television, fashion or even architecture. It’s probably true. For years, the music industry has railed against obvious imitators of major acts that have gone before them – Oasis were more than heavily influenced by the Beatles; Led Zeppelin are argued to have lifted entire songs from their blues heroes.

What many of these acts will tell you is that there predecessors were mere influences on them, rather than a springboard for them to use existing creativity to launch their new career whilst going about the real work of finding their own sound. The idea of a new “work” of art being a sincere tribute to an existing piece is nothing new, and the Courts have so far been willing enough to allow for new creativity to be “inspired” by what is already in the public domain.

However, the issue of where the lines are drawn between inspired creativity, paying tribute, outright plagiarism and actual copyright infringement is not always a straightforward one – the problem is in any event made even more complicated by the popularity of viral videos and other User-Generated Content such as mashups which build on an existing work to create something new. There’s a strong argument to suggest that this should be allowed not only to happen, but to flourish – it could well afford a whole new lease of life to an artist in a new and evolving medium.

The arguments were rehearsed very recently after a parody of Jay-Z’s ‘Empire State Of Mind’ was posted on YouTube and was then quickly removed after a complaint of copyright infringement from EMI Music Publishing, Jay-Z’s publishers.

‘Newport State Of Mind’, by director MJ Delaney, was viewed over two million times in two weeks by visitors to YouTube and celebrates life in the Welsh city. It was successful enough for Welsh rap act Goldie Lookin’ Chain to record their own version, ‘You’re Not From Newport’, after claiming that Delaney’s video suffered from “a lack of local knowledge”. Their version may still be online but Delaney’s was quickly removed, scotching plans to release it as a single.

Copyright is infringed when a ‘substantial part’ of an original work is either copied in its entirety or used to create another without permission from the Copyright owner, either as a main element around which the new work is based or even as an incidental part. In this case, there are three or four works which Delaney could have infringed in putting together the parody – the ‘Empire State Of Mind’ video, the sound recording of the song itself, its lyrics and its music. Dependent upon how the original copyright work has been used, then a number of defences are available to alleged infringers, one of which is parody.

Parody is, however, a notoriously difficult defence to run. Any parody of an existing song will infringe the copyright in the original if it makes ‘substantial’ use and unless it falls within the ‘fair dealing’ provisions of the Copyright, Designs and Patents Act 1988. These allow the use of copyright works for certain specific purposes, the most obvious in this case being for the purpose of criticism or review, provided that the part of the work used (and theoretically the parody) contains a ‘sufficient acknowledgement’ referring to the original.

The general rule is that the more of the original copyright work which the parody uses, the harder it is to argue that it doesn’t infringe. ‘Newport State Of Mind’ uses a virtually identical melody to Jay-Z’s original even though the lyrics are very different, and it’s probably this line of attack which EMI have used to get the video removed. Had the tune been substantially different, then it may have been easier to defend.

This is the essential legal problem with parodies and “tributes” – they need to be close enough to the original to be recognised by their audience as based on the original in the first place, which means that they will almost inevitably infringe copyright. Even though some cases have argued that parodies, re-mixes and other subsequent uses of copyright works contain enough original thought and creativity to be recognised as ‘works’ in their own right, the position was nowhere near clear enough for this particular parody to be worth the risk.

YouTube had to act quickly to avoid any action being taken against them (they’ve only recently been involved in a very high-profile copyright dispute with Viacom in the US). According to the Electronic Commerce (EC Directive) Regulations 2002, third party video websites will escape liability for copyright infringement provided that they have no actual knowledge that the content in question infringes and that they act ‘expeditiously’ to remove it. If not, they may be held liable along with the actual infringer. The usual approach is to remove the content first and investigate infringement claims later, eliminating the risk as far as possible.

A popular parody or tribute is likely to make its way around the web extremely quickly, and although most sites will (and should) operate effective ‘take down’ procedures; the chances are that some copies will still remain available. EMI’s real loss here, however, was probably to their reputation.

If there is a real need to clamp down on infringement, such as when copies of entire albums or films are made available through torrent sites without permission, then urgent action to deter further infringement will almost certainly be necessary to avoid damaging any ongoing revenue streams generated by the original.
In this case, however, Jay-Z’s fans and the general public were split on whether his complaint was justified morally (even though it was legally) and his reputation may suffer, as Prince found out when he threatened copyright infringement proceedings against a number of fan sites in 2007. Of course, had Delaney sought permission from Jay-Z before posting the video online, he would have had a defence to an infringement claim and possibly even support from an international superstar.

Although copyright in general has been due for reform for well over 20 years, the only way to be sure of avoiding an infringement claim is to get permission from an original artist before further use is made of their work, especially if the inspiration is obvious.

That said, it’s very important to remember that in this case, the only reason why EMI and/or Jay-Z had the law on their side was the fact that the melody in question was copied note-for-note from the original. What copyright actually protects is not the idea or concept behind a creative work, but the expression of that idea – often referred to as the idea/expression dichotomy.

The leading authority on this point was, unsurprisingly, the 2007 case of Michael Baigent and Richard Leigh v The Random House Group Limited – the “Da Vinci Code” trial.

In this case, the Court of Appeal found that the material which Dan Brown allegedly copied in “The Da Vinci Code” from Baigent and Leigh’s “The Holy Blood & The Holy Grail” did not amount to a substantial part of “Holy Blood & Holy Grail” because it was on the “ideas side” of the dividing line between ideas and expression, and was at too high a level of abstraction to give rise to a claim for copyright infringement.
Baigent and Leigh argued that Brown had copied the “central theme” of their book, dividing it into 15 parts of which Brown had taken 11. The Judge found that this was not enough, and that the “central theme” upon which the case was argued was not actually present in “Holy Blood & Holy Grail”, stating that it was “not enough to point to ideas or facts that exist[ed] in the Central Themes that [were] to be found in HBHG and DVC. It must be shown that the architecture or structure [had been] substantially copied.”
The use of information, facts and some theory from “Holy Blood & Holy Grail” in “The Da Vinci Code” was not enough to constitute a “substantial part” simply because it had took effort to compile the research which allowed the book to be written and were too generalised to amount to a copyright work which could be protected. However, had large tracts of text been copied from “Holy Blood & Holy Grail”, then the result may have been very different.

So, ideas may well not be new, but the way in which they are expressed can be. Different films or novels can be based on similar events, and new work can be inspired by what’s out there already. What this doesn’t mean is that it’s open season on existing material – the line remains blurred and such shades of gray tend to be where complicated and expensive legal cases thrive. If in doubt, it’s always better to ask an original author for permission rather than forgiveness.

There is, however, still no monopoly in an idea. While this remains the case, passing “go” and collecting your £200 or more is still an option, as is staying “out of jail”.

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  1. […] Divine Inspiration or Simple Plagiarism? « IP & Media Law […]

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