Nigel’s Music Business Blog 5

I trust you are suitably refreshed and having had a cup of coffee I am ready willing and able to continue our journey through the law of copyright.
What we will be dealing with this week is how yo can make money out of a copyright work, what is meant by copyright infringment, what defences are available to an allegation of copyright infringement, and what remedies are available where there has been an infringement.
The law provides that the owner of a copyright work has the exclusive right to do certain things with the work, These rights include the right to copy the work, issue copies of the work to the public, to rent or lend the work to the public and the right to make an adaptation of the work. The law provides that there are two types of copyright infringment, primary and secondary infringement. These types of infringement do not relate to the degree any alleged infringing act has been done. Primary infringement relates to dealings with the actual copyright work whereas secondary infringement relates to dealings with copies of the original work.
By way of example let us examine how a third party can infringe copyright by copying a work. A third party will have infringed the copyright owners’ exclusive right to copy the work if he  has copied the “whole or any substantial part” of the work. It is obvious what is meant by copying the whole of a work but what is meant by copying a “substantial part” of a work?  What is “substantial” is judged on a qualitative rather than a quantitative basis. As a rough guide but it is far from foolproof the more you copy the more likely it is to be held to be a “substantial part” and so infringing the copyright owners’ exclusive right to copy the work. However it is very possible that by copying a very small amount of the whole this will amount to copying a “substantial part” of the work. It is hard to say what is meant exactly by a substantial part. Take for example Beethoven’s Fifth Symphony. Let’s imagine copyright in the musical work subsists and if you were to copy the first four notes of the symphony it is quite possible that a court would say that this is a “substantial part” of the work as it is a key part or the sting of the work. The moral of the story is that when copying a work check if it is in copyright and if it is if you do not have the right to use it you need permission from the copyright owner in the form of a licence. If you are given permission to use the work you will have to negotiate a fee with the copyright owner but note if you do not get copyright clearance and you use the work without permission it could cost you much more than you might imagine. I am aware of two cases where in one case permission was not sought and the copyright owner demanded that the record company destroy all copies of the work which contained the uncleared sample which cost the record company thousands of pounds plus legal costs and in the other case a song which went to number 1 contained an uncleared sample. The copyright owners of the uncleared sample demanded and got full copyright ownership of the whole work containing the uncleared sample.
There is a bit of a myth which goes around with musicians saying it doesn’t really matter if I use just a little bit of someone’s words or music in my composition. YES it does. Another myth is that I can legitmately use two or three words or notes of someone else’s word or music and the law allows this. I think I know where this idea comes from which is from a different area of law (and again the idea about this area of law is incorrect) but the answer is NO you can not do this. As the late great James Brown said (and he was the most ripped off person sampling wise for many years until he put a stop to it by suing anyone who used his work without clearance) taking one second of my work is theft. It is surprising (and it may be that not all record companies were not fully au fait with what sampling was when it came into fashion) but a few record companies used to put out records with uncleared samples only to be hit occasionally with a massive copyright infringement claim by the owner of an uncleared sample. It took the record companies some time but now all good recording agreements will require the recording artist to tell them about any sample or use of a copyright work which is being used and that copyright clearance must be obtained before it is incorporated into the new work.
There is a story I don’t know if it is true but I like to think it is is that after Billy Bragg issued his song A New England he suddenly realised that it contained two lines of lyrics of a Paul Simon song. Being honest Billy Bragg wrote to Paul Simon to say what he had done in error and asked him if he could pay him to include these lines in his song. Paul Simon supposedly wrote back to him saying it was alright he could have them on him for free. This if true is the exception not the rule. The rule is if you need clearance clear it before you use it.
As an aside let me ask you and the work qualifies for copright protection and the owner of the work has successfully sued for infringement of the work what is unusual about the classical piece 4 minutes 33 seconds by John Cage? I don’t think I will tell you the answer but leave you to find this out for yourself.
The next question is how do you as the copyright owner make money out of your song? This is done by allowing others to use it inter alia on radio and television, in films, in TV adverts and allowing record companies to use the song on a record. Permission is given by granting to a third party a licence or an assignment. Put very simply a licence is a contractual permission whilst an assignment is an actual transfer of ownership of the copyright in the work. The exclusive rights given to the copyright owner allow him to do many things with the copyright and these rights enable the copyright owner to allow others to use all or only some of these rights for all or some of the copyright term for all or only some territories around the world. By cleverly using these rights the copyright owner can maximize his income from his intellectual property.
Let us now imagine that you believe that someone has infringed your rights in a copyright work and you decide to sue for copyright infringement. Are there any defences available for the alleged infringer? Apart from the most obvious defence that there was no infringment the law provides in excess of forty possible defences. That sounds a lot but many of these defences are unlikely to apply as they only apply in very particular situations. In most cases only a few defences are likely to apply for example the defence of using the copyright work for criticism or review or the defence of incidental inclusion which again only applies in specific situations. Let us look at the defence of incidental inclusion as an example. Imagine two scenarios where a copyright piece of music has not been cleared and has been used: 1. in a film scene and in the background of the set a jukebox is playing and only very faintly a few seconds of a piece of music can be heard coming out from the jukebox and 2: a television company is carying out a live broadcast interview with a politician outside the House of Commons and a car drives past blaring out the same piece of music which was heard in the previous scenario and which can be heard in the background of the live interview. Can the alleged infringer use the defence of incidental inclusion in these two situations? The answer is no for scenario 1 and yes for scenario 2. This is because in scenario 1 the film set was under the total control of the film director and so the music was not incidentally included whereas in scenario 2 the television director did not have total control of what was going on in the street and the car driving by was purely by chance and not at the beheast of the director.
It should be noted that copyright infringement is both a civil and criminal offence. Where criminal action is taken it is possible for the alleged infringer to be sent to fined and/or jailed by the Magistrates or Crown Court. The majority of actions are pursued by using the civil rather than criminal courts and in such situations there are several remedies which the copyright owner might seek which include an injunction to stop the infringement continuing, damages, an account of the profits made by the infringer and an order for destruction of the infringing goods.
We have briefly dealt in this blog with how you can make money out of a copyright work, what is meant by copyright infringment, defences to an allegation of copyright infringement, and the remedies available where there has been infringement.  Next week we will look at another area of  intellectual property law which is tied in with copyright law namely moral rights and performers’ moral rights.