SCENARIOTRAINING INTELLECTUAL PROPERTY
SCENARIO Beta Music Ltd owns the copyright to the song “It’s a Magical Life”. They were approached by an advertising company to use the song in an advert.
The advertising company said they would like the lyrics slightly changed and so Beta Music asked a local musician to advise. The musician, Mr Scarlett said they should simply substitute the name of the product “Magnetise” for the word “Magical”. Beta Corp renamed and re-recorded the song as “It’s a Magnetise life” for use in the advert and also uploaded the song to their website for publicity purposes.
Mr Scarlett is now claiming co-authorship of the new song, “It’s a Magnetise life” and is stating that the availability of the song on the website was infringing his copyright.
Is his claim likely to succeed?
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WORKING THROUGH USING WESTLAW UK What is the principle in this case? How much input does a contributor have to make to an artistic work to be eligible for a coauthorship credit? What is needed for a claim to succeed? We’ll start by finding the definition of authorship. Go into legislation on Westlaw UK and within the Statutory Definition field type authorship.
You’ll see that it suggests the term work of joint authorship. Select this term and click Search. You should get 5 results. If we had a larger number of results, we could use the filters on the right to just show results which are ‘in force’ or those which just apply in our jurisdiction.
The last two are related to Resale rights rather than the whole principle so we’ll ignore those for now.
Read through the three remaining definitions to get an idea of the scope. The first result (from the 1988 Act) states that (1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors. If you have any queries we’re here to help, please call Customer Support on 0800 028 2200 or email customer.service@westlaw.co.uk
The text of the third result actually points you towards the second result, s11 of the Copyright Act so we’ll look at that provision too. This section specifies that (3) In this Act “ Work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not separate from the contribution of the other author or authors. Now we could argue that that Mr Scarlett’s contribution was entirely separate and distinct from the original song but we should find precedential material.
Using the links on the left-hand side of section 11 we can see that there are Cases and Journal Articles citing this section so link to look at those. You should find that there are 11 cases and one article. The journal article is entitled “Joint authorship of a copyright work: the 'Bluebells' case” so would seem to be on point. Click on this article and read through it. This article really helps distil the elements of the principle of law mainly: Had the claimant made a “contribution” to the song? A “contribution”, the Court held, requires “the right kind of skill and labour” on the author's part. There is a de minimis level of effort which must be reached, with the result that mere ideas or suggestions may not qualify as contributions to a work. In this case, the claimant had clearly expended sufficient skill and labour in composing the violin part which was found to be a significant and original contribution to the song. That contribution was, the judge said, part of what made the song an original copyright work. Furthermore, the claimant's contribution was held not to be separate because it was dependent on the other parts of the song. According to the Court, “stripped of the voices and other instruments, the violin would sound odd and lose meaning”. The Court contrasted this with a literary work where separate authors have contributed specific chapters. This would not constitute a work of joint authorship, because the individual contributions are separate entities in themselves, distinguishable from each other. It looks like there is a very good argument that suggesting a change of a single word would not constitute a ‘contribution’ or be classed as ‘separate’. If you go back to the top of the article you can link either back to s.11, or to the case itself. Link through to the case (Beckingham v Hodgens).
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You can see from the icon at the top of the case that this case is still good law. You should always check that this is the case as journal articles may well have been written before any overrule or appeal. Now you have found a relevant case, it may be worth setting up a Case Alert to track your case so you will immediately be notified if another case cites it, it gets appealed, or if a journal discusses it. You can also see that this case has been subsequently cited elsewhere so click to view “All Cases Citing”. Two cases have subsequently mentioned this case, so read through these to see if they add anything to the principle of law we have found. These cases refer to an addition to an existing work being “sufficiently different” and that it required “effort, skill and time”. You could also read further journal articles citing this case to see how the principle has been applied to other mediums such as software, or read relevant paragraphs from Practitioner texts. Before you finish, it is worth just running quick searches in Current Awareness and News to check that nothing related to your area of law has happened in the last few days. For example you could run a search in Current Awareness for the subject area of Copyright, and within free text for joint /s author! This will look for the term joint within the same sentence as author, authors, authored, or authorship
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PRINCIPLE OF LAW In order for a contribution to an artistic work to be sufficient to claim joint authorship, the applicant must show:
• • •
The contribution required “the right kind of skill” as well as “effort and time”. The contribution must be a “significant and original contribution” The contribution must be “significantly different”
In addition, the courts have said that “mere ideas or suggestions may not qualify as contributions to a work” (from the Bluebells article). It could very well be argued on the face of the facts that Mr Scarlett made a suggestion rather than a significant contribution.
REMEMBER Ensure that any relevant cases you find are still ‘good law’. Use the status icons, terms in context and the case digests to quickly scan materials to see if they are relevant or not. Use the filters on the results page to narrow down large numbers of results to only those of most relevance. Read the cited/citing material – you may find cases which are even more pertinent to your facts. Check the most current material (in News & Current Awareness) as something may have happened today or yesterday which could affect your case. Once you have found relevant materials you intend to use, set up alerts to ensure that if anything does happen, you’ll get emailed straight away. Check details of any pending amendments – you should be aware of what the law will be, as well as what it is now.
If you have any queries we’re here to help, please call Customer Support on 0800 028 2200 or email customer.service@westlaw.co.uk