Nigel’s Music Business Blog 4

The subject of the blog this week and for maybe the following two weeks is intellectual property law and in particular the law of copyright. I do not intend to deal in any detail with trade mark law or the law of passing off save to say that these two areas of law are matters that will need to be thought about with reference to matters relating to the name of a band and any band logo. Ideally if possible a band name and any accompanying logo should be protected by registering the trade mark(s) in the relevant trade mark classes in which the band name and logo are used or going to be used. It may be that the band decide against applying for trade mark protection or that it might not be possible to register the trade mark(s) or the trade mark(s) is/are challenged by a third party and is/are subsequently revoked in some or all of the trade mark classes in which the mark(s) is/are registered. Where there is no trade mark protection for a band name or logo there is the possibility that protection might be available under the law of passing off. Without expanding any further let me just point these matters out: Yes it costs to register a trade mark and no you do not pay anything or need to register anything to possibly be able to use the law or passing off BUT and note the capital letters it is is better to get registered trade mark protection as it is a far better protection for your intellectual property law rights then trying to rely on the passing off law.
Enough about trade marks and passing off. Let’s move on to copyright. Can I get one of my two prejudices in life out of the way. The law does not refer to breach of copyright but refers to infringement of copyright. I don’t know why but it drives me mad when newspapers, radio and television broadcasters and leading lawyers (and believe me they do) refer to breach of copyright. I don’t know why it drives me mad but it does. Rant over! You may ask what is my other prejudice? I’ll tell you and it is a bit ridiculous I know but I hate men wearing bow ties during the day. I only like bow ties with a proper dinner jacket and even then I’m not that keen on them but I accept that they are required wearing with a dinner jacket. There is something about people wearing them during the day that gets under my skin. I think there should be a law against wearing them during the day. Apart from these two things I am pretty much perfect. Ha ha. So if you don’t like me just come up to me in the street during the day with a bow tie on and talk to me about breach of copyright. Aaaagh!!!
Ok now back to business. Copyright. I must point out that this is only a short blog and is merely a taster about copyright law and in no way can this blog deal in detail with such an enormous topic.
Let me dismiss a couple of misconceptions. Firstly, to have copyright protection I need to register it. That is not the case. To get trademark protection you have to register the mark whereas with copyright provided you and the work qualify for protection you do not need to register the work. Secondly, if I use just a second or at most two seconds of a piece of copyright recorded music in my own piece of music I do not need any permission to do this as I am only using one or two seconds at most and this is acceptable. This is not the case. If you want to use a piece of copyright recorded music you will need in all probability three, yes three permissions, one from the writer/owner of any lyric or words you have used, one from the writer/owner of the music you have used and one from the owner of the copyright in the sound recording you have used.
Imagine you are holding a LP or CD in your hand what apart from the actual physical product are you holding? The answer is a bundle of intellectual property rights. For example the recorded work will attract copyright protection in inter alia the words contained within the music, the music itself and the sound recording of the words and music. The artwork and photographs on the sleeve and any accompanying artwork and photographs in the LP/CD booklet will attract copyright protection, the band name will almost certainly NOT qualify for copyright protection (there is a legal case which suggests this is the case) but the band name may be protectable by registering a trade mark or under the law of passing off, the same applies to the name of the record company printed on the LP/CD sleeve as with the band name, any song lyrics printed in the LP/CD booklet will attract copyright protection as will the layout and any wording printed in the LP/CD booklet. What you own as the purchaser of a LP/CD is the right to own the physical property you have bought and the right to play it essentially in private. You have not purchased any intellectual property rights which are comprised in the LP/CD. There are quite a few auction rooms like Bonhams which sell music and entertainment memorabilia and ocasionally a very rare unreleased recording of say The Beatles might come up for auction. If you look at the auction catalogue it will nearly always state that you are not buying the copyrights in the work but merely the physical item itself. Although the item may well sell for a lot of money if you were also buying the intellectual property rights in the work the item would have sold for many times the sale price. This is because all you can do with the work is to own the physical item and essentially play it in private. You can not for example make and sell copies of it or broadcast it on the radio or internet.
Copyright exists in inter alia literary and musical works, sound recordings, films and broadcasts.Copyright protects the expression of an idea not the idea itself. For copyright protection in a literary, dramatic, musical and artistic work the work must be “original”. Essentially this means using your own skill and effort and not copying from another copyright work. The level of skill and effort required is actually not that high. For example writing down a shopping list of groceries you intend to buy this week will satisfy the skill and effort requirement. One interesting case was that of George Harrison whose song My Sweet Lord was found to have infringed the copyright of the Phil Spector song He’s So Fine not because he actually went out of his way to copy the music but because he admitted he knew the song well and it was possible that he subconsciously copied it. The work must be put into a fixed form for example written down, recorded on tape, on a mobile phone or on a computer. It should be noted there are other requirements necessary before one can obtain copyright protection in a work but they are too detailed to go into in this blog.
Assuming one has copyright protection this means you have protection for a specific period of time for example for a literary and musical work the protection period is the life of the author plus 70 years. Once the protection period has expired the work becomes a public domain work.
The person who created the work is known as the author of the copyright work and it is usually the author who has the right to be the owner of the copyright in the work. One case where this is not the case is in an employer/employee situation where if the employee in the course of his employment creates the work he will be the author but his employer will be the owner of the work. (As an aside an employment contract should deal with the ownership of copyright of works created by an employee in the course of his employment). In the music industry the author of a sound recording is usually the record producer and it is usually the record producer who by law would be deemed to be the owner of the copyright in the sound recording. As the record company will want copyright ownership of the sound recording the production agreement should provide that ownership of the copyright of the sound recording will be assigned (transferred) to the record company for the full copyright period and for any extensions to the copyright term should that ever happen.
We have seen briefly what is copyright but what can you do with a copyright work? As the owner of the copyright work the law grants you some exclusive rights (subject to you licencing or assigning the work to a third party – more of which next week). These exclusive rights include the right to copy the work, to issue copies to the public, to rent or lend the work to the public, to perform, show or play the work in public, and to adapt the work.
The next thing to think about is how can you make money out of a copyright work? This is done by granting permissions to do certain things by way of a licence or assignment. We will also need to think about what is meant by copyright infringment, what are the defences to an allegation of copyright infringement, and what remedies available where there has been infringement. Connected to copyright we will also need to think about what are moral rights and what are performers’ moral rights? I think you need a bit of a break and I need a coffee so we shall examine these areas next week and possibly the week after.