Copyright Infringement and The Public Domain [to finish]

s 16 CDPA

Details the acts restricted by copyright work protection

Includes:
- copying, renting, performing publicly, communicating publicly [without the consent of the author]

Can be done by doing the act OR authorising someone else to do the act

a 17 CDPA - Infringement of copyright by copying.

Copying is reproducing the work, taking the whole or a substantial part of the protected work

Elements for Copying - Designers Guild

C and D were both textile design companies.

D had copied C’s fabric design to create their own design and sell to the public.

Court affirmed the test for copying

TWO STAGE TEST:

• Access + Sufficient Similarity = prima facie evidence of coping [burden is on D to prove otherwise]
  
  

  
  Access = not concrete evidence needed, just needs to be plausible that D would have access. In this case, because RW and DG were operating in the same market, and DG designs were on sale, it is plausible for competitors to do market researching see DG designs before creating their own

ONCE copying is est, must show that it is infringing. This is the test of substantiality.

• qualitative not quantitative test, looking at whether a key part of the work is copied.

Different genres of music and copying

Different genres of music have different relationships and cultures of copying and sampling.

• Before the 19th century, reusing and rewriting other musicians melodies was normal and NOT seen as unoriginal. This changed with the rise of the Romantic author, where their work was now seen as part of their soul. And also the growing sheet music market contributed to this.
  
  
  

• Folks and Blue - very normal for creative use of other works I this genre. There is a standard arrangement structure too > 12 bar blues > Originality and authorship are expressed through arrangement and performance
  
  

• Hip hop - big sampling culture, has been critics as being unoriginal and even theft. Some seek to differentiate hip hops creative use fro other types because samploing involves direct use of a copyrigth protected sound recording.
  - IMO > need to think about the culture of hip hop, it emerged from a DIY cultitr where artists had little access to instruments to make OG tracks.
  
  

• Pop music (EU and UK) - early songs are adaptions of European folk songs, Use similar melodic pattern.
  
  
  

• We can see that each genre has different levels of copying that will be deemed as the building blocks of creativity.

Williams v Gaye [US Judgement]

The majority held that Pharrel William’s song Blurred Lines infringed on the copyrigth protection of Marvin Gaye’s song Got Tp give it up.


Judge Nguyen dissented arguing that the songs are not similalr and the precedent set is ‘dangerous’

Nguyens dissent:

• Majority failed to engage with D’s argument that there was similarity but NOT substantial enough

• The majority doesn’t explain which elemts of Gaye’s song are protected, despite the fact that the case Feist affrims that ‘the mere fact that a work is copyrighted does not mean that every element must be protected”

• Nguyen then analysed the different elements of the music (ie Melisma, Pitch, Signature Phrase,Hook Phrase) and found that neither was able to be protected
  
  
  
  

Sheeran v Chokri [UK Judgement]

Sami Chokri claimed that Ed Sheerans Shape of You copied his song Oh Why. Notably yhat the eight bar pasot chpurs section of shape of you ‘Oh I’ (the hook) (Court calles it he OI Phrase) is copied from the OH Why phrease (court refers to it as OW Hook)in his song.

Case struck down at Acces because the court held that

• The fact that the song was on the internet did NOT mean that ED had access too to it. Must assess the likelihood of ED seeing it

• Oh Why had only been performed 2x publicly, only 12k streams, unlikely that any acquantancies of ED saw the song
  
  
  
  Also assessed similarity in obiter

• both songs comrpise of the first 4 notes of the rising minor pentatonic scale BUT aspects of similarity were NOT protectable

 Structured Asset Sales v Sheeran [US Judgement]

Marvin Gaye’s estate brought a claim agaiant Ed Sheeran for allegeded copyright infrigement of Lets Get it On in Sheerans sogn Thinking Out Loud.


The district court (jury) held that there was NO infringement and the appeal court affirmed that judgement.

US Test

1. D copied the plaintiffs work (access infers this)

2. The copyig is illegal because of substantial similarity

   1. Test is - whether an ordinary observer unless he set out to detect the disparities, woiuld be disposed to look over them and regard them aesthetically the same - Yurman Design, Inc. v. PAJ

3. “[C]opyright protection may extend only to those components of a work that are original to the author,” meaning they were “independently created” and possess “some minimal degree of creativity.” - Feist
   
   The judgement acknowledes that music “‘borrows, and must necessarily borrow, and use much which was well known and used before.’” And that giving robust procectiion for simple combinatiosn could thwart creativty. Hence why the basic musical buildong blocks like notes and rhytms are not copyrightable.
   
   

Larball Publishing Co. v Lipa [US case]

Larball publichisng claim that Dua lipa and her song levitating infringe on copyright protection of Wiggle.

Claim failed because:

• elements that were similaer bwtween the works were not protectable because the two elements (descending chord and one additional note) were not sufficientyl original to constitute orignal work.

• lay persion coudl listne to portions of the songs and hear similarities, there is no SUBSTANTIAL similarity because the elements are non copyrightable.

• Claimants last minute argued that 5 additional elements of the song were protectable > (the signature melody, repetitive rhythm, patter style certian instruments ) which give the song a particualr muscial style of ‘pop with a disco feel’.) > court rejected this

Shazam Productions Limited v Only Fools The Dining Experience Limited and Others [UK CASE]

Shazam (owned by the family of John Sullivan, who wrote all the OFAH scripts) brought a claim against the creators of OFDE, a dining experience based on OFAH, for copyright infringement for using the OFAH characters in the experience (no script or music from the series used)



Court found that the character from OFAH (Del Boy) was protectable independent of the scripts. > first time a character was protected on their own right in the UK

Exceptions. Art 5(5) of the InfoSoc Directive, which the UK broadly implements, sets a three-step test:

1. certain special cases;

2. no conflict with normal exploitation of the work;

3. no unreasonable prejudice to the rightholder’s legitimate interests.

The assessment of fair dealing is not set out explicitly in the statute. Case law takes an approach similar to the three-step test, looking at:

• the purpose and character of the use;

• the effect on the market for the original;

• the amount and substantiality taken.

The Goldsmith/Prince/Andy Warhol saga - [US Fair Use CASE]

Facts. In 1984, Vanity Fair commissioned Warhol to create an illustration of Prince for an article, and paid photographer Lynn Goldsmith a one-time fee to use her photo of Prince as an artistic reference. Warhol’s work drew heavily on that photo. Decades later, after Prince’s death, Condé Nast (which operates Vanity Fair) paid Warhol’s estate to license one of the portraits for a tribute issue. It did not seek Goldsmith’s permission, believing it didn’t need to.

Holding. The Supreme Court held that this use was not fair use and infringed Goldsmith’s copyright. The commercial nature of the use, licensing the image to a magazine, weighed against fair use. Because both the original photo and the portrait served a similar purpose (illustrating magazine stories about Prince), the use was not sufficiently transformative to justify using the photo without a licence.

Dissent. The dissenting judges argued the ruling could stifle creativity and “thwart expression”.

Implications. The ruling arguably helps smaller artists by giving them more control over how others reuse their work. It may also harm creators who generate new work by sampling and remixing existing material. It is unclear whether this is a narrow point about competing licensing markets or a broader point about derivative works.

Rhythm debate

Cleevland Browne and Wycliffe Johnson argue that some of reggaeton’s biggest stars infringed the copyright in their song by copying or interpolating its rhythmic pattern, the dembow riddim. They seek remuneration for those songs. If they win, artists could no longer use one of reggaeton’s best-known rhythmic foundations without licensing it first.

Why it’s novel. US cases have protected melodies, but this claim seeks to protect a rhythm.



Issues:

• US protection requires the music to be written down or recorded. Complex rhythms are often expressed by clapping rather than notation, and Afro-diasporic music is hard to notate using conventions developed in the classical era for melody. Some scholars argue this Eurocentric bias has stopped Black artists from bringing successful infringement claims.
  
  
  

• Rhythms work more like building blocks than finished expression, close to the idea side of the idea/expression divide. Dembow itself grew out of Jamaican dancehall and was reshaped by Panamanian and Puerto Rican artists, so reggaeton is a living, cross-diasporic tradition. Giving one party ownership of a foundational rhythm risks fencing off a cultural commons and freezing the way these genres evolve, which could hit artists from the very communities the claim is meant to help.
  
  Middle ground (my idea)
  could argue that the problem lies in the fixation and notation requirements and the originality threshold, not in the scope of protection. Reform there (for example, accepting recordings and oral evidence more readily) might fix the bias without handing out monopolies over rhythms. Alternatives such as attribution norms or collective licensing are also worth a line.

US and UK differences

UK - Judge
US - Jury
Courts split the inquiry into actual copying and unlawful appropriation. Some circuits, notably the Ninth, use an extrinsic/intrinsic approach.

• The extrinsic part is an objective analysis of the protectable elements. (usually experts)
  
  

• The intrinsic part is the “ordinary observer’s” overall impression, which the jury decides.
  
  
  The UK instead asks whether the defendant copied and whether they took a substantial part of the claimant’s work, a qualitative question the judge decides.

Normative point. Juries bring a lay perspective and arguably track how audiences actually experience works, but they give no reasons. This makes outcomes less predictable and risks poorly filtering out unprotectable elements (Blurred Lines is the usual example). Judges give reasoned, consistent decisions that develop the law, but may be less representative of how the public perceives similarity.

Idea/Expression dichotomy

“Copyright law protects foxes better than hedgehogs.”

• The more creative/oriignal a work, the better chance it stands in receiving protection
  
  Copyright protects the expression of ideas, not the ideas themselves. Anyone is free to use the same underlying idea, concept or method, but not to copy the particular way the author expressed it.
  
  
  
  There is no fixed point where an idea becomes expression, so courts decide case by case, often by asking whether what was taken reflects the author’s own intellectual creation (the originality threshold).

Desigers guild - Where the CA went wrong

The CA’s reasoning would have been fine if only the notion of flowers and stripes had been copied, but it ignored the judge’s findings of fact, in both detail and cumulative effect. It made five errors.

Visual comparison. The CA asked whether Marguerite looked like Ixia. Hoffmann said this was the wrong exercise. The question is whether the features copied from Ixia form a substantial part of Ixia as an artistic work, not whether the two designs look alike overall.

Dissection. This had two errors. It ignored substantial parts of the judge’s findings on what had been copied, and it treated the copied features piecemeal rather than by their cumulative effect. The CA reduced the copied elements to just stripes and flowers.

“Technique” is no answer. Art involves ideas and technique, but the results of technique are visual effects that form part of the artistic work. Here they created a distinctive impression of looseness, boldness, lightness and fragility.

Differences are irrelevant to substantiality. The CA noted the resist effect looked translucent in Ixia but perforated in Marguerite. Hoffmann calls this the same fallacy as visual comparison. Differences might show the effect wasn’t copied, but once copying is established, the only question is whether the copied elements, taken together, are a substantial part of the claimant’s work.

Key difference: the CA asked “was the expression copied?” after dissecting out the ideas. Hoffmann asked “was a substantial part of the author’s originality, however abstracted, copied?” and said yes.

Designers guild - Contention

is it neccesssary to have suffiicient similarity and THEN have sunstiantialty be assessed on a separate basis.

- would be rare for a case (and there is unlikely ever been one decided) where the courts find sufficient similar but not substantiality and the vice versa


IMO > should still remain.
Acts as a reminder for the judiciary to assess the originality of the author’s creation when assessing similarity. This ensures that similarities from the public domain (unprotected similarities) do not found infringement.