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Copyright Law – Awarding authors for the creation of their original work

July 12th, 2018

Copyright law is attracting large amounts of attention. Thanks to the recent, highly publicised case whereby a US Federal Appeal Court upheld the Judgment that singer Robin Thicke and rapper Pharrell Williams pay the estate of Marvin Gaye $7.4 million due to copyright infringement (The New York Times), it has since been reported that this is likely to lead to an influx of claims in the UK of similar sort in this lucrative area (Thomson Reuters). The Independent has reported that The Script are now suing James Arthur for his ‘Say you won’t let go’ single by arguing that it has breached copyright of its single “The Man Who Can’t Be Moved”; Arthur’s single, which the case claims ‘reignited’ his career and generated £14.8 million in profits.

The Law

Copyright protection is very wide and it is there to protect the author for their creation of their works, specifically on how ideas are expressed, and not necessarily the ideas themselves.

The law that governs copyright in the UK is the Copyright, Designs and Patents Act 1988. Thanks to this Act s1(1)(a) musical works and sound recordings (s1(1)(b) CDPA 1988) fall under copyright and automatic protection is granted by the Act. The Act also protects dances, mimes and work that is written and spoken and therefore can include computer games and databases. This means that where the work is copied without the owner’s consent, a primary act of copyright infringement has occurred. An infringement is a strict liability offence and therefore regardless of intent, simply copying the musical works will be sufficient to satisfy a breach and warrant the grant of a remedy. This includes either compensation or a cut of the profits made.

Whether the work is deemed to have been copied is decided on a case by case basis and is often not so clear. What needs to be shown is that either the whole or a substantial part of the work has been copied (s16(3) CDPA 1988). The test that Judges apply to calculate whether a substantial part has been copies is qualitative, not quantitative. Often, determining whether the work constitutes a copy will depend on whether the most interesting or popular sections of that piece of work have been copied, as shown in a case reported in 2006 whereby Prince Charles sued the Mail on Sunday for quoting extracts from his private journal in their newspaper.

The Impact on the music industry

The purpose of Copyright Law is to reward authors for the creation of their works, allowing them to solely reap the benefits (The British Library). It is therefore a possibility that unless an out of court settlement is reached, James Arthur may be ordered to pay damages to The Script. Interestingly, The Script have hired the same advocate who represented Marvin Gaye’s estate in the Thicke and Williams case. Similarly, in 2016, Ed Sheeran offered $16 million to Matt Cardle for his hit ‘Photograph’, as Cardle had argued that the chorus had been copied from his song ‘Amazing’.

It is a highly lucrative area, where scope for being awarded high amounts of compensation (dependent on profits) is possible. Although the judgment of Thicke has been said to now prevent music creativity, it goes too far in protecting more than just the copy but a song’s ‘style and feel’ and that there are no limits on a claim to copyright (The New York Times); a claim is worth pursuing from the eyes of the owner as similarities may lead to valuable compensation being obtained.

Overall, this is a highly lucrative area as shown in the previous high-profile cases. Since there is no need to prove intent to copy, if profits made on copied work is high, then there is no reason why authors should not bring a claim to compensate for the rewards gained from their original work.

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