The Game is On!

The Game is On!

Episode 1 – The Adventure of the Girl with the Light Blue Hair

In a fictional land called London, Sherlock Holmes and John Watson meet a curious client: the toymaker Joseph…

The Adventure of the Girl with the Light Blue Hair is the first episode of The Game is On!, a web series produced as part of the AHRC-funded activities of CopyrightUser.org. Drawing inspiration from numerous well-known copyright and public domain works, as well as recent copyright litigation, the video provides a springboard for exploring key principles and ideas underpinning copyright law, creativity, and the limits of lawful appropriation and reuse. Below you can find the related Case Files: supplementary educational materials aimed at suggesting points of discussion about copyright for teachers and students.

On 12th November 2015, The Adventure of the Girl with the Light Blue Hair won the AHRC Award for Innovation in Film.

Related material

Copying, Creativity and Copyright – a CREATe Working Paper by Ronan Deazley and Bartolomeo Meletti that offers insights into the creative process behind The Adventure of the Girl with the Light Blue Hair, and makes the case for understanding copying as a positive phenomenon in helping us learn and innovate, develop and engage with others.

 

Case Files

  • 1. The Red Bus

    TheGirl_01 The Adventure of the Girl with the Light Blue Hair starts with a red double-decker bus travelling across Westminster Bridge, with the Houses of Parliament in the background. The choice of starting the video with this particular image and colour scheme – a red bus on a black and white background – is intentional. It explicitly refers to a recent copyright case involving similar photographs: Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1.

    In the digital age, copyright in photography is being challenged in many ways. On the one hand, it is extremely easy to copy a digital photograph and share it via social networks; on the other hand, it is often difficult or even impossible to identify the copyright owner of that photograph and get their permission to use it.

    This Case File #1 briefly explores the delicate relationship between copyright and photography, and presents the Temple Island case to generate points of discussion around this topic.

    COPYRIGHT AND PHOTOGRAPHY

    Copyright protects different types of work, such as books, songs, films and images. In the UK photographs are protected by copyright as ‘artistic works’, a category that also includes paintings, illustrations and sculptures. In order to receive copyright protection, photographs need to be original. The artistic quality of the photo is not a requirement for copyright, so original amateur pictures are protected too. According to UK copyright law a photograph is considered original if it is created by the author using his own ‘skill, labour, effort and judgement’. Recent European case law indicates that originality arises from the author’s ‘own intellectual creation’. Either way, it has to be the author’s own creation and should not be copied from other protected works.

    As soon as you take a photo that is original you become the copyright owner of that photograph. This is because copyright is granted automatically, with no need to register your work. You can find more information about copyright protection here.

    It is important to know that copyright only protects the expression of an idea, not the idea itself (in legal terms: the idea-expression dichotomy). In other words copyright protection does not cover ideas, concepts or techniques, but only the expression of these.

    For example, the idea of painting a flower in an impressionistic style is not protected, whereas the actual painting expressing that idea can be. Similarly, the idea of photographing a particular landscape cannot be protected by copyright; what is protected is the photograph itself. This means that if you take a photo of Westminster Bridge using your smart phone, automatically you have copyright in the image you produce; if anyone else wanted to use that particular photograph (e.g. on their Facebook page), they would need to get your permission first.

    However, the idea of photographing Westminster Bridge cannot be protected. In fact, the defendants in the Temple Island Collections Ltd case argued that Westminster Bridge, the Houses of Parliament and the iconic London Routemaster bus were ‘common elements’ in the claimant’s photograph which could not be protected (see the discussion below). Anyone else, they argued, remained free to create a photograph incorporating the same objects.

    Ideas and works that are not original enough to receive copyright protection are in the public domain, meaning that anyone can freely use them. What makes a work original and thus copyright protected is the creative input of the author. In the case of photography, originality can be achieved in several ways, for example, by: i) choosing a special angle of shot, setting up the camera in a particular way, editing the photo afterwards and so on; ii) creating a scene to be photographed; iii) being in the right place at the right time.

    CURIOSITY

    Recently there was a lot of online discussion and debate about whether or not copyright existed in a photograph taken by a monkey: the infamous monkey ‘selfie’. You can read about this curious case here.

    The Case: Temple Island Collections Ltd v New English Teas Ltd & another [2012] EWPCC 1

    red-bus-compound The photo on the left was taken in 2005 by Mr Fielder, who wanted to create a modern and iconic scene of London to be used on souvenirs. Using Photoshop and taking inspiration from the film Schindler’s List, Mr Fielder edited the photo to make the red bus stand against a black and white background. He also removed the sky and some people from the picture. In 2010 Mr Houghton, who was aware of the existence of Mr Fielder’s picture, took three photos of the Houses of Parliament and one of a red Routemaster bus. These photos were edited together with another iStockphoto image of a red Routemaster bus to create the picture on the right, which was used on souvenir tins for tea.

    Mr Fielder claimed that Mr Houghton’s work reproduced a substantial part of his original work and so infringed his copyright. Mr Houghton contested that in terms of copyright protection his picture was sufficiently different from Mr Fielder’s work, which was so ordinary that copyright could be infringed only by copying it exactly, for example by making a photocopy. According to Mr Houghton, Mr Fielder could not rely on copyright law to establish a monopoly on black and white images of the Houses of Parliament with a red bus in frame. Mr Houghton argued that these elements are ‘common elements’ in every day life, which cannot be copyright protected.

    Justice Birss gave judgement in favour of Mr Fielder: he found that Mr Houghton copied a substantial part of Mr Fielder’s picture and thus infringed his copyright. The judge held that there were obvious similarities between the two images – such as the same buildings in black and white with a bright red bus driving from right to left and the blank white sky – and that these similarities were due to the fact that Mr Houghton saw Mr Fielder’s work before creating his own image, had copied it, and had copied too much of it.

    FOR DISCUSSION: COPYRIGHT INFRINGEMENT OR JUST COMMON ELEMENTS?

    What do you think? Was the judge right to decide that Mr Houghton’s work infringed Mr Fielder’s copyright? Or should Mr Houghton have been free to produce that image without Mr Fielder’s permission, according to the idea-expression dichotomy explained above?

    Or what about this drawing created in 2011 by the artist Susie Brooks? It is, essentially, a black and white image of Westminster Bridge that also features a red Routemaster bus and the Houses of Parliament. If the artist was aware of Mr Fielder’s photograph when she created her work, do you think her drawing might infringe copyright?

    Brooks 2011 Drawing

    In fact, Susie Brooks had never seen Mr Fielder’s photograph. She wrote to Copyright User about the creation of her work as follows: ‘[This artwork] was part of a series of drawings of a person crossing London and featuring Thames crossings from East to West. … As I print in silkscreen, which is laborious, the medium dictates that I use as few colours as possible to say what I had to say … In this case I only wanted to draw attention to the bus, as this is where my fictional traveller is sitting, and also tells the viewer it is London in shorthand.’

    The artist’s comment that she used a red bus as a ‘shorthand’ way of communicating that this is London is interesting, especially in light of the kind of arguments presented to the judge in the Temple Island case.

    You can find out more about Susie Brooks and the artwork she creates here.

    Download the PDF version of Case File #1 – Red Bus.

  • 2. The Monster

    TheGirl_08One of the graffiti that scare the toymaker Joseph portrays a monster eating his ‘beautiful, wonderful toy’. The image of the monster is inspired by two different artistic works: a drawing of the Green Fisherman eating Pinocchio by Carlo Chiostri (1863 – 1939), who illustrated one of the first editions of Carlo Collodi’s (1826 – 1890) The Adventures of Pinocchio, and the famous painting by Francisco Goya (1746 – 1828) Saturn Devouring His Son. In producing our graffiti of the monster, we were free to mash-up those works of art as we wished, since both works are out of copyright.

    This Case File #2 considers the length of time that copyright normally lasts, and what it means when a work is in the public domain.

    monsters-compound

    COPYRIGHT DURATION: LIFETIME OF THE AUTHOR + 70 YEARS

    In the UK, generally copyright lasts for the life of the author plus 70 years. After that period of time (often referred to as the ‘copyright term’), copyright expires and the works of the author enter the public domain. Public domain works can be used for free by anyone for any purpose, without having to ask for permission. So in order to know if a work is in the public domain in the UK you need to identify its creators – bearing in mind that a single work can have more than one creator – and check the date of their death. If the creator(s) died more than 70 years ago the work is in the public domain and free to be used by all (at least in theory).

    For example, anyone is free to create a video game based on the painting The Starry Night by Vincent Van Gogh (1853 – 1890) or use the Symphony No. 9 of Ludwig van Beethoven (1770 – 1827) as part of a soundtrack to a film, since both Van Gogh and Beethoven died more than 70 years ago. The video game and the film would be protected by copyright as new, original works, whereas Van Gogh’s The Starry Night and Beethoven’s Symphony No. 9 remain in the public domain. Indeed, an adaptation of a public domain work creates a new copyright work with a new ‘copyright life’. But this has no effect on the public domain status of the underlying work: everyone remains free to make use of Van Gogh’s and Beethoven’s work in whatever way they want. Similarly, if you want to create a video based on The Jungle Book, you are free to use Kipling’s stories (Rudyard Kipling, 1865 – 1936); but to use clips from Disney’s movie adaptation would require permission from the rightsholders.

    There are two other important things to bear in mind when dealing with public domain works:

    Copyright law differs from country to country

    A work that is in the public domain in the UK is not necessarily in the public domain in the US as well (and vice versa). This is because each country’s copyright law is different (in legal terms: copyright law is territorial).

    The difference between an original work and its reproduction

    It is important to know that while an original work might be out of copyright, a later reproduction or recording of that work might be in copyright. For example, while the music for Beethoven’s Symphony No. 9 is out of copyright, a recording of that work made in 2009 by the London Philharmonic Orchestra is in copyright. So in order to use Symphony No. 9 without the need to clear any rights at all, you should find a recording that is free to use, for example, because it is distributed under an open licence such as Creative Commons. You can find classical music distributed under Creative Commons licences on FreePD.com and on Kevin MacLeod’s Incompetech.com.

    Similarly, a photographic reproduction of a work of sculpture in the public domain, such as Michelangelo’s (1475 – 1564) David, or the works of the 19th century Scottish sculptor John Henning (1771 – 1851), may be considered protected by copyright.

    However, whether a photograph of a painting (or any other two-dimensional work of art) attracts copyright protection is a more controversial and unsettled issue. So, if you wanted to use a photograph of Van Gogh’s The Starry Night without having to get permission, the safest thing to do would be to find one that has been distributed under an open licence. A good source for this is Wikimedia Commons.

    CURIOSITIES

    Although JM Barrie died in 1937, his most famous work, Peter Pan, is still in copyright. An amendment to the 1988 Copyright Designs and Patents Act was passed to allow the copyright for Peter Pan to run indefinitely in the UK; royalties are to be allocated to the trustees of the Hospital for Sick Children, Great Ormond Street, London, for as long as the hospital exists.

    Also, some very old unpublished works remain in copyright until 31 December 2039, even though their authors have been dead for hundreds of years. Imagine, for example, that you discovered an unpublished manuscript by William Shakespeare. As incredible as it seems, that unpublished manuscript would still be in copyright today.

    FOR DISCUSSION: TOO LONG, NOT LONG ENOUGH, OR JUST RIGHT?

    The ultimate goal of copyright is the creation and spread of knowledge. To achieve this goal, copyright needs to strike a fair balance between the interests of authors and creators, and the interests of the general public. By giving creators economic and personal rights, copyright allows them to be rewarded for their efforts, thereby promoting the creation of new work. At the same time, copyright puts some limits on those rights in order to encourage learning and access to information and knowledge. One of these limits is the copyright term explained above: after a certain period of time, copyright expires and the work can be freely enjoyed and re-used by the members of society. What do you think? Is the current copyright term appropriate?

    USEFUL REFERENCES

    For useful information on the creative re-use of public domain works, see: www.create.ac.uk.

    For a guide to the copyright term and the public domain in the US, take a look at this useful resource produced by the Cornell Copyright Information Centre.

    For a resource to help you calculate whether a work is in the public domain in the UK or other EU Member States, see www.outofcopyright.eu.

    For further information about the copyright status of Peter Pan, see www.gosh.org.

    For further information on the odd situation of unpublished works, see www.gov.uk.

    Download the PDF version of Case File #2 – The Monster.

  • 3. The Baker Street Building

    Baker streetSherlock Holmes and John Watson discuss Joseph’s case at 221B Baker Street. The above illustration is inspired by two sources: the fictional address of Holmes’ apartment in the Arthur Conan Doyle stories, and 187 North Gower Street, in London, where the BBC filmed exterior shots of Holmes’ building for its TV adaptation, Sherlock.

    This Case File #3 explores the copyright status of buildings, designs and architectural plans, and considers when buildings can be copied by other creators, such as artists, photographers and film makers, without permission.

    COPYRIGHT AND BUILDINGS

    Architects depend on copyright to protect their work. While copyright protects different types of work, such as books, songs and films, works of architecture are protected as artistic works. A work of architecture is defined as ‘a building or a model for a building’, and a building is defined to include ‘any fixed structure, and a part of a building or fixed structure’. The term ‘structure’ is not defined in the legislation. The London Eye or the Nemesis rollercoaster at Alton Towers are good examples of structures that would qualify for copyright protection, but so too would more ordinary structures, such as a bridge, an outdoor swimming pool, or a garden that was landscaped to include features such as stone walls, steps and a pond.

    It is important to note that in order to enjoy copyright in a building it does not need to be of a certain aesthetic or artistic quality. This means that even very simple buildings could, in theory, be protected by copyright. But, to attract copyright the work must be original, and so claiming copyright in a very simple building may be difficult.

    CURIOSITY

    Just as a building or a structure is protected by copyright, the architect’s drawings and plans (that is, the preparatory sketches for the building or structure) are also protected by their own copyright. Under the 1911 Copyright Act, these drawings, maps and plans were protected as if they were literary works. Today, they are protected under the Copyright Designs and Patents Act 1988 as artistic works.

    THE CASE: Pearce v Ove Arup Partnership [2001] EWHC Ch 455

    Docklands

    (Docklands)

    Docklands

    (Kunsthal)

    Infringement of copyright happens if a person copies the whole or a substantial part of a protected work without permission or without the benefit of a copyright exception. When dealing with works of architecture, however, it is not always so easy to establish that unlawful copying has taken place.

    In this case the architect Rem Koolhaas designed the Kunsthal museum in Rotterdam, but was accused of copying the designs for a town hall in Docklands created by the claimant Gareth Pearce as part of his final year project for his Diploma in Architecture. The court had to decide if Mr Koolhaas had copied the Docklands plans.

    Mr Pearce argued that there were a number of similarities between the Kunsthal designs and the Docklands plans which, taken together, established that Mr Koolhaas must have copied his designs.

    The Court took a different view. Just because Mr Pearce had identified a number of similar dimensions between the two buildings did not mean anything. Acknowledging that architects were often limited in their options when trying to achieve a particular structure or effect, the judge observed that you could take thousands of measurements to compare the two different designs are many were bound to be similar. That did not mean there had been copying, or that the copying was infringing. All that Mr Pearce had established was ‘a collection of ‘similarities’ amounting individually and collectively to nothing’. ‘You do not have to be an architect,’ the judge said ‘to recognise the absurdity of the comparison as evidence of copying’. The case had ‘no foundation whatsoever’; it was ‘pure fantasy – preposterous fantasy at that.’

    COPYING ARTISTIC WORKS ON PUBLIC DISPLAY

    Although buildings are protected by copyright the law allows you to make copies of the building in certain circumstances. For example, you can make your own painting or drawing of a building, just as we have done in our video, without infringing copyright. You can also photograph it, or include it in a film. And, you can distribute copies of your work to the public or post it online.

    Copyright law also lets you make copies of other types of artistic work on public display. For example, you can paint, draw, photograph and film works of sculpture permanently situated in a public place or in premises open to the public, such as The National Gallery or TATE Modern (although public galleries may rely on contract law to set their own rules about what you can or cannot photograph within the building).

    FOR DISCUSSION: NOT ALL WORKS ARE EQUAL

    Why does the law let you make copies of certain artistic works on public display, such as buildings and sculptures, but not all artistic works on public display?

    Think of a gallery, open to the public, that contains paintings as well as works of sculpture, or what about public graffiti or a mural on a wall? Why do you think the law distinguishes between different types of artistic work in this way?

    USEFUL REFERENCES:

    Pearce v Ove Arup Partnership Ltd and Others [2001] EWHC Ch 455 is available here: http://www.bailii.org/ew/cases/EWHC/Ch/2001/455.html

    The Copyright, Designs and Patents Act 1988 is available here: http://www.legislation.gov.uk/ukpga/1988/48/contents.

    Section 4 provides the legal definition of artistic works, including works of architecture. Section 62 sets out which artistic works on public display can be copied and under what circumstances.

    Download the PDF version of Case File #3 – The Baker Street Building.

  • 4. The Anonymous Artist

    Masks
    Joseph, the toymaker, has asked the police to identify the culprit making ‘dreadful images’ of his toy, portraying it in violent situations. However, as Joseph tells Holmes, he has been told by the police that ‘these anonymous street artists are almost impossible to track down’.

    In the video, this sentiment is visualised by numerous copies of the Guy Fawkes mask, from the graphic novel V for Vendetta written by Alan Moore and illustrated by David Lloyd. Moore and Lloyd appropriated the legacy, myth and image of Fawkes for their story. In turn, their own Fawkes mask was subsequently co-opted by the hacktivist group Anonymous and has become an icon of protest movements around the world. (Anonymous, among other things, are known for their virtual attacks on media conglomerates and copyright industry organisations.)

    This Case File #4 considers the often problematic relationship between copyright and digital technology, as well as how copyright law is enforced in the online world.

    UNLAWFUL USE OF COPYRIGHT MATERIAL ONLINE

    Copyright law and policy has a close relationship with the advancement of new technology. Recent developments in online technologies have had a significant effect on the copyright landscape, bringing benefits and challenges for creators, copyright owners and the public.

    Technology provides new opportunities for the production and spread of knowledge by creating new ways to innovate. Whether people are recording music in their bedroom or creating video mash-ups to post online, it is now cheaper and easier than ever before to make new work which, in turn, can encourage people to be more creative. New technologies have also made it much easier and cheaper for creators and copyright owners to make their work available online to a global audience. And, digital technologies can be used to help safeguard copyright work, for example, by using tools that notify the owner when their work has been uploaded online without permission.

    On the other hand it is now also easier to access, copy and share copyright protected material unlawfully, and this has caused considerable difficulties for copyright owners. If creators cannot rely on their copyright to benefit financially from their creations, they may decide not to create any work at all which could have a negative impact on the development and spread of knowledge and culture in general.

    BLOCKING INJUNCTIONS

    One way that creators and rightsholders have tried to overcome the challenge of online copyright infringement in the UK is to ask courts to grant an order to block a website that provides access to unlawful material.

    To do this, copyright owners apply to the court for an injunction against Internet Service Providers. If the injunction is granted the Internet Service Provider must take technical steps to block access to the infringing website which means their customers will not be able to access that particular website.

    Website blocking is becoming more and more common. However, it is considered by some to be a controversial measure. Some believe that this type of copyright enforcement is too strong and interferes with people’s fundamental rights, such as free speech and the freedom to access and distribute information.

    It is also unclear how effective website blocking is as a long term solution because users often can easily bypass the block or find the material they are looking for on other illicit websites. In addition, the process of securing an injunction takes time and this gives website operators the opportunity to change the location of the website long before any injunction comes into force.

    THE CASE: Dramatico Entertainment v British Sky Broadcasting [2012] EWHC 268

    This case concerned a well-known website called The Pirate Bay. This website provided links to infringing content, much in the same way that a search engine does to legal content.

    The Pirate Bay argued that they were not infringing copyright because they did not actually host any illegal content on their website. However, the Court decided that as they were providing links to illegal content they were facilitating infringement.

    As a result, the court ordered five leading British Internet Service Providers (ISPs) to take steps to prevent their users from accessing The Pirate Bay website.

    This did not stop users from accessing The Pirate Bay site, however. Indeed, The Pirate Bay claimed that it received 12 million more visitors on the day after the court order came into effect than it had received before the ISPs took steps to block access to their site. This demonstrates the limitations that legal and technological mechanisms alone can achieve in trying to overcome the challenge of online infringement.

    FOR DISCUSSION: ENFORCE, ENGAGE, ENABLE

    The case above demonstrates some of the tensions between copyright and technology. New innovation does not always promote compliance with copyright, and using technological enforcement measures to protect work is not always effective.

    Recently, though, some creators and copyright industries have been developing new ways to continue to benefit from copyright works while also making these works more easily accessible to their customers online.

    Can you think of any examples of innovative ways of rewarding creators while satisfying customer expectations for quick and easy access to copyright works?

    USEFUL REFERENCES:

    Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others [2012] EWHC 268 (CH) is available here: http://www.bailii.org/ew/cases/EWHC/Ch/2012/268.html

    For a list of websites that have been blocked in the UK by court orders to protect the interests of copyright owners, see: http://www.ukispcourtorders.co.uk/

    Download the PDF version of Case File #4 – The Anonymous Artist.

  • 5. The Terrible Shark

    TheGirl_07

    This illustration from our video depicts a terrible shark-like creature about to eat Joseph’s toy. It was inspired by two different images: an illustration of the ‘Terrible Shark’ by Carlo Chiostri (1863 – 1939), from one of the first editions of Carlo Collodi’s (1826 – 1890) The Adventures of Pinocchio, and a theatrical release poster for Steven Spielberg’s classic film Jaws (1975).

    PinocchioChiostri
    Jaws Movie Poster

    While the former is in the public domain because Chiostri died more than 70 years ago, the poster for Jaws is still in copyright. So, if you want to copy the artwork from the Jaws poster you need to ask for the copyright owner’s permission unless, that is, you can rely on one of the exceptions to copyright.

    This Case File #5 demonstrates that you are free to make use of a copyright work, without seeking the owner’s permission, if your use falls within one of the copyright exceptions.

    COPYRIGHT EXCEPTIONS

    UK copyright law provides for a number of exceptions to copyright, specific circumstances when work can be used without the need to get permission from the copyright owner. There are a number of copyright exceptions set out in the Copyright, Designs and Patents Act 1988, concerning non-commercial research and private study, quotation, news reporting, education, and other uses.

    A number of these exceptions are sometimes referred to as ‘fair dealing’ exceptions because the law often requires that your use of the material for that particular purpose must be fair. Indeed, each copyright exception has specific requirements about how and when the material can be used without permission, and in order to benefit from an exception you must make sure you fulfil the relevant requirements.

    For our illustration above, we have relied on the exception for Caricature, Parody or Pastiche in referencing the iconic artwork for the Jaws poster.

    CARICATURE, PARODY AND PASTICHE

    To parody a work is to use it a humorous way to make a particular point. This might be to make a comment on the work that you have parodied, or you might be making fun of, criticising or drawing attention to a different work or issue altogether.

    Before October 2014, creating a parody of a copyright work in the UK would typically have been considered copyright infringement. However, with the introduction of a new exception for parody, copyright material can now be parodied without the permission of the owner, in certain circumstances. Specifically, your use of the copyright work must be fair.

    How much copying from a work is fair or unfair is an issue ultimately decided by a court of law on a case-by-case basis, taking into account the interests and rights of the owner as well as the freedom of expression of the person relying upon the parody exception. In making this decision, a court will typically take a number of different factors into account, such as the amount of the work that has been copied.

    As the exception is new, the government have produced guidelines to help owners and users understand what it means in practice. The government’s guidance is available here. It suggests that you should only make a limited or moderate use of someone else’s work to create your parody. For example, it is unlikely to be considered ‘fair’ to use an entire musical track, without any alteration or change, to create a spoof video to post online. If you are using someone else’s work in its entirety, you should almost certainly get permission from the owner.

    On the other hand, there are plenty of circumstances under which the new exception can be relied upon: a comedian using a few lines from a film or song for a parody sketch; a cartoonist referencing a well-known artwork or illustration for a caricature; or an artist using small fragments from a range of films to compose a larger pastiche artwork.

    We have parodied the poster from Jaws to make the point that parody is now lawful under the UK copyright regime. What do you think? Can we rely on the new exception? Is our use fair?

    For more information on the exception for caricature, parody and pastiche, see the copyrightuser.org page here.

    THE CASE: Twentieth Century Fox Film Corp v Anglo-Amalgamated Film Distributors [1965] 109 SJ 107

    cleo-compound

    This case also concerned movie posters. The defendants created a poster for their film Carry on Cleo that was based on the artwork for Twentieth Century Fox Film’s film Cleopatra starring Richard Burton and Elizabeth Taylor. The judge decided that as ‘the defendant’s poster reproduce[d] a material part of [Twentieth Century’s] poster’, their use amounted to substantial copying and so infringed the copyright in the original work. On this basis the judge granted an injunction against the second work, stopping the defendants from distributing or displaying their poster.

    FOR DISCUSSION: A CLEOPATRA FOR THE 21st CENTURY?

    As mentioned, in October 2014 new copyright exceptions were introduced into UK copyright law. One of the new exceptions permits the use of copyright material for the purposes of parody. The Cleopatra case, referred to above, was decided before the introduction of this exception, but what if the case were decided today? The defendants would certainly argue that their use fell within the exception for parody. Do you think they would be successful? Is their work really a parody? Is it fair? Does it matter that they were parodying the work for their own commercial purposes?

    Do you think the law today strikes a better balance between the rights of copyright owners and the interests of the general public, compared to the law before an exception for parody was introduced?

    Download the PDF version of Case File #5 – The Terrible Shark.

  • 6. The Famous Pipe

    CaseFile 6

    The pipe has been associated with the image of Sherlock Holmes since Sir Arthur Conan Doyle’s (1859 – 1930) stories were first published in The Strand Magazine with illustrations by Sidney Paget (1860 – 1908). You can see an illustration by Paget of Holmes with his pipe below (there are others available on Wikimedia Commons if you want to search for them).

    Sidney Paget

    In our video Sherlock wears a T-shirt with a pipe and some writing below, not all of which is visible. The inspiration for this illustration is René Magritte’s (1898 – 1967) famous painting The Treachery of Images, which depicts a pipe with the words ‘Ceci n’est pas une pipe’ [this is not a pipe] underneath.

    Like Case File #5 (The Terrible Shark), this Case File #6 demonstrates that you are free to make use of a copyright work, without seeking the owner’s permission, if your use falls within one of the copyright exceptions.

    COPYRIGHT EXCEPTIONS

    UK copyright law provides for a number of exceptions to copyright, specific circumstances when work can be used without the need to get permission from the copyright owner. There are a number of copyright exceptions set out in the Copyright, Designs and Patents Act 1988, concerning non-commercial research and private study, news reporting, parody, education, and other uses.

    A number of these exceptions are sometimes referred to as ‘fair dealing’ exceptions because the law often requires that your use of the material for that particular purpose must be fair. Indeed, each copyright exception has specific requirements about how and when the material can be used without permission, and in order to benefit from an exception you must make sure you fulfil the relevant requirements.

    For our illustration above we are relying on the exception which allows quotation from a copyright work, whether for criticism, or review, or for some other purpose, and in this Case File we discuss the circumstances in which it can be used.

    QUOTATION FOR CRITICISM OR REVIEW OR OTHERWISE

    Before October 2014, copyright law permitted use of a work for the purpose of criticism and review, but it did not allow quotation for other more general purposes. Now, however, the law allows the use of quotation more broadly, so long as the work in question has been made available to the public, you only use as much of the work as you need to make your point, and your use is accompanied by a sufficient acknowledgment.

    The quotation exception also requires that your use of the work is fair. What is meant by fair is not defined in the statute, so this is something that will ultimately be decided by judges on a case-by-case basis.

    For example, in Time Warner Entertainment Company LP v Channel Four Television Corporation Plc and Another [1994] EMLR 1 (the Clockwork Orange case) Channel 4 made a documentary titled Forbidden Fruit which included a number of clips from Stanley Kubrick’s (1928 – 1999) film A Clockwork Orange. The court decided that including clips making up 8% of the film, which amounted to 40% of the entire documentary, was fair.

    Compare the case of Ben Goldacre (author of Bad Science) who embedded a 44-minute clip from a three-hour radio programme on a blog post about irresponsible media coverage of the MMR vaccine. Specifically, Mr Goldacre sought to demonstrate how the media often misrepresent the evidence on MMR, and to draw attention to the serious consequences that irresponsible journalism of this kind can have on public health.

    The London Broadcasting Corporation threatened to sue Mr Goldacre for copyright infringement if he did not take down the clip immediately. Lacking the financial resources to cover the potential costs of litigation, Mr Goldacre removed the clip from his blog.

    Had the case made it to court much of the discussion would have focussed on whether the use of the 44-minute clip from the radio programme was fair in the circumstances. Mr Goldacre has explained why he used such a long clip as follows: ‘it was so long, so unrelenting, and so misinformed that I really couldn’t express to you how hideous it was. If I tried, without the audio, you might think I was exaggerating. You might think that I was biased’. You can read more about this case here. Do you think Mr Goldacre’s use of the copyright material was fair?

    For more information on the quotation exception see the copyrightuser.org page here.

    MORE THAN ONE EXCEPTION

    Each copyright exception has specific requirements about how, when and what material can be used without permission, and in order to benefit from an exception you must make sure you fulfil the relevant requirements.

    These requirements can differ from exception to exception. For example, whereas the quotation exception permits copying photographs, the exception for reporting current events does not. Similarly, whereas the quotation exception only allows copying work that has been made available to the public, the exception for research and private study allows you to copy unpublished material as well.

    People making use of copyright protected work often argue that their use of the work falls within more than one of the copyright exceptions. There is nothing wrong with this at all. For example, what if we are wrong to claim that our use of Magritte’s painting in the video falls within the quotation exception. Is there another exception that we might be able to rely upon?

    THE CASE: Ashdown v Telegraph Group [2001] RPC 659

    The background to this case is that Paddy Ashdown, the former leader of the Liberal Democrats, and Prime Minister Tony Blair held secret talks in October 1997 about a possible future Labour/Liberal Democrat coalition government. Ashdown wrote up notes of the meeting, which were later leaked to the Sunday Telegraph. In November 1999 the paper published an article about these secret talks, reproducing lengthy quotes from Ashdown’s notes.

    The Sunday Telegraph argued that their use of the work (the notes) was fair dealing for the purpose of criticism and review and for the purpose of reporting current events.

    In the Court of Appeal Lord Phillips rejected the argument that they were using the work for the purposes of criticism and review, but accepted that they were using it to report a matter of interest to the public. However, the judge continued that although the newspaper was reporting current events their use of the work was not fair. The fact that the notes had not previously been published or released to the public by Ashdown was an important consideration for the judge, as was the amount of material which had been used.

    FOR DISCUSSION: BALANCING INTERESTS

    It is important that there is an exception to copyright for the purpose of quotation, criticism and review so that works protected by copyright can be used for critique or comment by other people; this is important for free speech and for the benefit of society as a whole.

    In this case the court had to balance the use of Ashdown’s notes by the newspaper in the interests of public and political discussion against the copyright owner’s rights. Indeed, Ashdown was planning to publish his own political diaries including the note from this meeting with Tony Blair. This was an important factor for the court.

    Also, Lord Phillips made it very clear that while the newspaper was not allowed to use lengthy verbatim extracts from the notes, it was still free to report to the public the information contained in the notes accompanied perhaps by one or two short quotes (to make it clear that they were able to give an authentic account of the meeting).

    Do you think the court struck the right balance of interests in this case?

    USEFUL REFERENCES:

    The government has produced advice on recent changes to the exception for quotation.

    Ashdown v Telegraph Group [2001] RPC 659 is available here.

    Download the PDF version of Case File #6 – The Famous Pipe.

  • 7. The Matching Wallpaper

    CaseFile7

    In the background of Holmes and Watson’s apartment you can see wallpaper with ‘flowers scattered over it in a somewhat impressionistic style’.

    There is a famous copyright case involving the design of two different wallpapers: Designer Guild Limited v Russell Williams (Textiles) Limited [2000] UKHL 58. In this case, the judge identifies seven points of similarity between the claimant’s wallpaper and the defendant’s infringing copy. We gave our illustrator Davide Bonazzi the same seven points as a guideline for creating the wallpaper in our video.

    This Case File #7 offers points of discussion about fundamental copyright concepts, such as the difference between an idea and the expression of an idea, and what it means to copy a substantial part of an existing work. The Case File also reminds us that judges do not always agree on how these issues should be resolved, or whether a particular instance of copying is unlawful or not.

    IDEA AND EXPRESSION

    When creating new work it is natural to be inspired by the work of others. Indeed, one of the ways that copyright promotes the creation of new work and the spread of knowledge is by providing authors with rights in their work while, at the same time, allowing the public to make use of that work in certain ways.

    One way in which copyright does this is by protecting only the expression of ideas and not ideas themselves. This means that the idea or ideas for a song, a novel, or a painting are free for anyone to use and take inspiration from. But what you cannot copy is the original way an author has expressed his or her idea(s) in that song, that novel, or that painting. In this way creators are given the opportunity to benefit from their own personal expression, while the general ideas underpinning a work remain available for others to use.

    However, it is not always easy to draw the line between the lawful borrowing of simple ideas and when borrowing becomes unlawful because you have copied, for example, too many ideas from the plot of a play or a film, or have copied just one or two ideas but in too much detail.

    So, feel free to be inspired by other people’s ideas but make sure you bring something new to those ideas and express them in your own individual way.

    For an interesting video on copyright and the balance between protecting creative works and allowing the public to use them click here.

    SUBSTANTIAL TAKING

    Infringement of a copyright work occurs when the whole or a substantial part of a protected work is used without permission or without the benefit of a copyright exception. Therefore, taking an insubstantial part of a copyright work without permission is allowed. This is because the law recognises that no real injury is done to the copyright owner if only an insignificant part of the work is copied.

    Under UK copyright law substantial taking is considered by the courts to be a matter of quality, not quantity. So it is not just about how much you copy from someone else’s work, it is about the importance of the parts that you take from that work. This makes it difficult to define exactly what amounts to a substantial part of a work.

    For example, copying one table or a graph from a textbook on mathematics might be regarded as substantial copying – even though it is only one from hundreds of pages – on the basis that it took considerable effort to produce and that it conveys a lot of important information in a simple and easily digested form.

    In one case making use of 50 seconds of a song was found to be a substantial part because that particular part was recognisable by the public. The 50-second sequence within the song does not need to have copyright protection in its own right, but, taken as a whole, it was understood by the courts to be a substantial part of the work.

    THE CASE: Designer Guild Limited v Russell Williams [2000] UKHL 58

    Designers Guild

    Designer Guild (the claimant’s work)

    Russell Williams

    Russell Williams (the defendant’s work)

    In this case the claimant, Designer Guild, designed and manufactured fabrics and wallpapers. One of their wallpaper designs, called the Ixia, had been inspired by the work of the French impressionist painter Henri Matisse and was a great commercial success. Designer Guild sued Russell Williams for copying the Ixia design. The defendants denied any copying.

    Identifying seven similarities between the two wallpapers, the trial judge held the defendant had copied the Ixia design, and that the copying was substantial.

    Russell Williams appealed, arguing that if there was copying they had not copied a substantial part of the claimant’s work. The Court of Appeal agreed and overturned the trial judge’s decision: the court considered that while the defendant had borrowed ideas and artistic techniques from the Ixia design, their copying had not been substantial. One of the Court of Appeal judges said the wallpapers ‘just do not look sufficiently similar’.

    Designer Guild then appealed to the House of Lords (what is now referred to as the Supreme Court). On a technical point of law, the House of Lords unanimously agreed to overturn the Court of Appeal’s decision and reinstate the trial judge’s original ruling: the defendant had infringed the claimant’s copyright.

    However, a number of the judges in the House of Lords did also say they thought the defendant’s copying had been substantial. Lord Hoffman commented that substantial copying did not have to involve literal copying. One could infringe copyright by copying a particular feature or a combination of features from someone’s work without slavishly copying the work itself. He also pointed out that it was irrelevant whether the defendant’s wallpaper looked like the claimant’s wallpaper: all that mattered was whether a substantial part of the original work had been copied.

    A CASE OF INDIRECT COPYING?

    As we mentioned, we gave our illustrator Davide Bonazzi the same seven points of similarity from the Designer Guild case as a guideline for creating the wallpaper in our video. For example, we asked Davide to produce a design consisting of ‘vertical stripes, with spaces between the stripes equal to the width of the stripe’, with flowers and leaves ‘scattered over and between the stripes’, and that the centre of the flower heads should be represented by ‘a strong blob, rather than by a realistic representation’.

    When Davide created his wallpaper design he had never heard of the Designer Guild case (we didn’t tell him about it) and he had never seen the wallpaper designs from the case.

    But in producing a design in accordance with the seven points of similarity, has Davide created a work that potentially infringes the Designer Guild wallpaper? Can you copy a work without ever having seen it simply by following a set of instructions describing the essential features of that work?

    FOR DISCUSSION: THE SIMILAR AND THE DIFFERENT

    One of the Court of Appeal judges commented that the wallpapers ‘just do not look sufficiently similar’ whereas one of the judges in the House of Lords said that ‘they looked remarkably similar to me.’

    What do you think? Do you think the two wallpaper designs look similar? Does it matter whether they look similar?

    As explained there were three different decisions taken in this case, with different judges taking different views on whether the defendant’s copying was substantial and so infringing. Copyright litigation often involves borderline decisions about which reasonable people might disagree. Ultimately, though, the decision of the House of Lords (or what is now the Supreme Court) is the most important. It takes precedence.

    What do you think about the different decisions in this case? Do you think that the Court of Appeal or the House of Lords made the decision in the correct way? Why is it challenging for courts determine copyright infringement in something like wallpaper?

    USEFUL REFERENCES:

    Designer Guild Limited v Russell Williams (Textiles) Limited (Trading As Washington Dc) [2000] UKHL 58 is available here.

    Download the PDF version of Case File #7 – The Matching Wallpaper.

  • 8. The Dreadful Images

    TheGirl_07

    The ‘dreadful images’ that scare Joseph, the toymaker, are graffiti drawn all over the ‘fictional land called London’. The illustration above, depicting Joseph’s toy hung from a tree, is based on an actual place in London: the corner of Pollard Street and Pollard Row, in Bethnal Green. This is where the English graffiti artist and political activist Banksy created ‘Yellow Lines Flower Painter’, one of his famous pieces of street art.

    Yellow Lines Flower Painter

    Graffiti and street art raises interesting questions about copyright. This Case File #8 explores when the law refuses to grant copyright protection to original work for policy reasons.

    COPYRIGHT AND PUBLIC POLICY

    Copyright protects different types of work, such as books, songs, films, as well as artistic works. In the UK, an artistic work is defined to include a graphic work, photograph, sculpture or collage irrespective of artistic quality, and graffiti is a type of graphic work.

    However, just because the mysterious girl with the light blue hair has created original works of graffiti this does not necessarily mean they will be protected by copyright.

    Historically, as a matter of public policy, the courts have refused to protect works which they considered to be immoral, obscene or irreligious. For example, in the early 20th century, one judge refused protection to an author’s dramatic work because it advocated ‘free love and justifies adultery’. He commented: ‘It is clear that copyright cannot subsist in a work of a tendency so grossly immoral as this.’

    Today, that judge’s attitude seems rather prudish but the courts have recently reaffirmed that copyright will be refused to works that are ‘immoral, scandalous or contrary to family life,’ as well as to works that are ‘injurious to public life, public health and safety or the administration of justice’.

    Lots of local authorities throughout the UK provide ‘free walls’ on which graffiti artists can create their works lawfully, but anyone caught doing graffiti on buildings and other public spaces without permission can be arrested and prosecuted under the Criminal Damage Act 1971. Also, the Anti-Social Behaviour Act 2003 introduced new powers for local councils to punish offenders and require them to help clear up any unwanted graffiti.

    So, even though the graffiti in the video are original artistic works created by the mysterious girl, it seems they are also acts of criminal damage. For this reason, they may not be protected by copyright.

    THE CASE: A-G v Guardian (No.2) [1990] AC 109

    This case concerned the work Spycatcher written by Peter Wright (1916 – 1996) a former MI5 officer. The book was a part memoir, part exposé of MI5 and its operations.

    The UK government tried to ban Spycatcher in the UK and prevent its publication elsewhere in the world, unsuccessfully. However, as Mr Wright’s memoir had been written in breach of the duty of confidence he owed to the Crown (his employer), he was denied copyright in his work. The House of Lords held that Mr Wright would not be able to bring an action for copyright infringement because of the ‘disgraceful circumstances’ under which the book had been written.

    That is, it was not the nature of the content in the book but the circumstances under which the work had been created that meant Mr Wright could not enjoy copyright in his work.

    FOR DISCUSSION: THE RIGHT POLICY?

    Should works that are immoral be denied copyright protection? What exactly does it mean to say that a work is immoral? Or can you think what might be meant by works that are ‘contrary to family life’?

    What about works created in breach of the criminal law or that are otherwise unlawful? Should unlawful graffiti be regarded as protected by copyright? What about the work of Banksy, and other underground graffiti artists. Is it in copyright or not?

    USEFUL REFERENCES:

    A-G v Guardian (No.2) [1990] AC 109 (the Spycatcher case) is available here.

    You can find out the location of legal graffiti walls around the world here.

    Download the PDF version of Case File #8 – The Dreadful Images.

  • 9. The Improbable Threat

    TheGirl_11

    In trying to persuade Holmes to take Joseph’s case, Watson asks: ‘What if it’s a threat? That’s what the graffiti might mean.’ These eleven words are based on dialogue from The Blind Banker, an episode of the BBC TV series Sherlock, in which Holmes, played by Benedict Cumberbatch, declares: ‘It’s a threat. That’s what the graffiti meant.’ That is, in writing our script for the video, we copied and slightly adapted nine words from the screenplay for The Blind Banker.

    Like Case File #7 (The Matching Wallpaper), this Case File #9 concerns the concept of ‘substantial taking’. But whereas Case File #7 discussed substantial taking in the context of non-literal copying, in this Case File we explore what substantial or insubstantial copying means when borrowing literally from someone else’s work.

    SUBSTANTIAL TAKING

    Copyright infringement occurs when someone takes the whole, or a substantial part of, a copyright protected work without permission or the benefit of a copyright exception. So, taking an insubstantial part of a copyright work without permission is allowed. This is because the law recognises that no real injury is done to the copyright owner if only an insignificant part of the work is copied.

    But what constitutes a substantial part? Substantial taking is considered by the courts to be a matter of quality, not quantity. So it is not just about how much you copy from someone else’s work, it is about the importance or value of the copied parts in relation to that work. This is because a small part of the original work may be highly significant to the piece as a whole.

    For example, in one case the court decided that copying only a few lines from an unpublished version of Ulysses by James Joyce (1882 – 1941) was substantial because of the particular importance of those lines to the unpublished text. Another judge has commented that: ‘only a section of a picture may have been copied, or even only a phrase, from a poem or a book, or only a bar or two of a piece of music, may have been copied … In cases of that sort, the question whether the copying of the part constitutes an infringement depends on the qualitative importance of the part that has been copied, assessed in relation to the copyright work as a whole.’

    This focus on the quality rather than the quantity of what has been copied can make it difficult to define precisely what amounts to a substantial copying.

    THE CASE: Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569

    Infopaq International is a media monitoring and analysis company that provides its customers with summaries of selected articles from Danish daily newspapers and other periodicals. Articles are selected for summarising on the basis of search criteria agreed with Infopaq’s customers, and the selection is made by means of a ‘data capture process’. This process involved scanning articles to produce searchable text files, and then searching the text files to generate eleven-word snippets of text (the search word plus five words either side) which were both printed out and stored electronically. The text files were subsequently deleted.

    One of the key questions to be answered in this case concerned whether the text extracts of eleven words amounted to unlawful copying from the original articles. Or, in other words, did copying just eleven words of text constitute substantial copying?

    The Danish Supreme Court referred the issue to the Courts of Justice of the European Union. The judges decided that ‘an act occurring during a data capture process, which consists of storing an extract of a protected work comprising 11 words and printing out that extract, is such as to come within the concept of reproduction … if the elements thus reproduced are the expression of the intellectual creation of their author; it is for the national court to make this determination.’

    That is, the Court of Justice considered that an extract of eleven words taken from a newspaper article could constitute a substantial part of that work, provided the extract conveys to the reader an element of the work which represents an expression of the intellectual creation of the author. In short, copying a sentence or even a part of a sentence from a literary work might be regarded as substantial copying.

    When the case returned to the Danish Supreme Court Infopaq were found guilty of copyright infringement.

    FOR DISCUSSION: QUALITY OR QUANTITY

    What do you think about this case? Do you think that copying a short extract of just eleven words taken from a newspaper article should amount to substantial copying which might require the permission of the copyright owner? What if it was eleven words taken from an extremely long book or from a short poem? Or what if you are copying eleven words from a blog or a post on a social media platform such as Twitter?

    When we copied nine words from the BBC screenplay for The Blind Banker did we engage in substantial or insubstantial copying? Does it matter that we slightly adapted the original text so that the statement from The Blind Banker became a question in our video? Or, if you copied our eleven word text without our permission would you be infringing our copyright?

    USEFUL REFERENCES:

    The Copyright, Designs and Patents Act 1988 is available here. Section 16(3)(a) provides that copyright in a work can be infringed by copying the work as a whole or any substantial part of it.

    Designer Guild Limited v Russell Williams (Textiles) Limited (Trading As Washington Dc) [2000] UKHL 58 is available here.

    Infopaq International A/S v Danske Dagblades Forening [2009] ECR I-6569 is available here.

    Sweeney v MacMillan Publishers (2002) RPC 35 (the James Joyce case) is available here. You can also read a summary of the Sweeney decision here.

    Download the PDF version of Case File #9 – The Improbable Threat.

  • 10. The Uncertain Motivation

    CaseFile10

    Joseph, Sherlock Holmes and the Girl with the Light Blue Hair are all creators: Joseph draws and designs toys; Sherlock composes music; and the mysterious girl is an accomplished street artist. However, they all create for different reasons.

    This Case File #10 considers the role that copyright plays in incentivising the creation of literary and artistic works, before inviting you to think about the different motivations each of our characters may have for creating their own work.

    ECONOMIC ROLE OF COPYRIGHT

    In common law jurisdictions such as the UK and the US the justification for copyright is often presented in economic terms. Copyright provides an economic incentive to encourage the creation and dissemination of cultural goods such as books, music, art and films. It does this by giving the creators of those works the right to prevent others from making use of their work without permission. Without the protection of the law, other people could simply make use of the work for free and the creator may not be able to earn a living from his or her work. And if creators weren’t able to earn money from their work, they may be discouraged from creating new work at all, which would have a negative effect on society as a whole.

    However, it is understood that the copyright regime should also deliver significant benefit to the public as well. For one thing, by giving authors the right to control the use of their work, copyright encourages and incentivises the creation of new work which contributes to the encouragement of learning, the dissemination of knowledge and the promotion of culture. But also, copyright does not give creators absolute control over the use of their work: they are granted only certain economic rights, and these rights are subject to various exceptions. This means that, under the right circumstances, everyone is able to draw inspiration from, and make use of, existing copyright works in the creation of new work.

    That copyright plays this dual role of securing private rights and public benefit was evident from the very start of the copyright regime. The first copyright act in the world was passed in the UK. Popularly referred to as the Statute of Anne 1710, it was passed ‘for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies’. That is, the 1710 Act granted copyright to authors (by vesting the copies of printed books) for the public good (to encourage learning).

    WHY PEOPLE CREATE

    We are all creators, and we all create copyright works all the time. Whether you are writing an email, taking some photos or videos with your phone, or preparing an essay or report for school or for work, you are creating something that is probably protected by copyright. These may not be the kind of things that we normally think of as literary, artistic or musical works but they are still works protected by copyright. And obviously, we would create them whether or not the copyright regime exists.

    So, while copyright provides an important incentive for the creation of certain types of work, it does not incentivise the creation of all types of copyright-protected work. Different people have different motivations for creating, and some people will always create whether copyright exists or not.

    Joseph is a toymaker. He draws and designs toys for a living, and he sells his ‘beautiful, wonderful toy’ in order to be financially rewarded for his creative efforts. He creates work safe in the knowledge that the law provides him with economic rights in his work that he can exploit commercially.

    On the other hand, Sherlock composes music because he enjoys it; it helps him think and he believes that ‘the work is its own reward’. He is not incentivised to create by the copyright regime as he is not interested in commercially exploiting his compositions. (Indeed, he doesn’t appear to know anything about copyright at all!) Rather he simply enjoys creating and composing music in the privacy of his home.

    The mysterious Girl with the Light Blue Hair is also motivated to create, although her reasons for creating the ‘dreadful images’ are not as obvious as for Joseph or Sherlock. She does not appear to be creating her works of art for commercial gain. But neither is she simply creating for herself, as Sherlock does. She is creating work for public consumption, work that engages the public. Her works are a form of communication, but communication without any obvious economic agenda. As with Sherlock, the copyright status of her works does not appear to be a relevant consideration in motivating her to create.

    FOR DISCUSSION: IS IT ALL ABOUT THE MONEY, MONEY, MONEY?

    Do you agree that copyright protection helps creators, and that it encourages people to create? What if copyright did not exist? Would people still create? How would writers, artists and musicians make a living out of their creative works, if not by copyright?

    Why do you think the Girl with the Light Blue Hair is creating her images featuring Joseph’s beautiful, wonderful toy?

    Download the PDF version of Case File #10 – The Uncertain Motivation.

  • 11. The Mutilated Work

    TheGirl_07

    In trying to persuade Holmes to take the case, Watson argues that: ‘If you were a professional musician, you wouldn’t want people copying or mutilating your work’.

    UK copyright law gives creators both economic rights and moral rights. While ‘copying’ someone else’s work without permission may constitute an infringement of their economic rights (such as the reproduction right or the right of communication to the public), ‘mutilating’ it might infringe the creator’s moral rights. In the UK, moral rights include the right to be identified as the author of the work (the right of attribution) and the right not to have your work subjected to ‘derogatory treatment’ (the right of integrity).

    This Case File #11 considers the two principal moral rights held by creators in the UK, and investigates why it can be difficult to determine what amounts to ‘derogatory treatment’.

    MORAL RIGHTS

    Moral rights are concerned with the non-economic rights of a creator. They protect the creator’s connection with a work as well as the integrity of the work. The two principal moral rights in the UK are the right of attribution (sometimes referred to as the right of paternity) and the right of integrity (or the right to object to derogatory treatment).

    Unlike economic rights, which can be licensed or assigned to another person, moral rights remain with the creator of the work and cannot be exercised by anyone else. However, creators can waive their moral rights if they so wish.

    In some EU countries, such as France, moral rights last indefinitely. In the UK, however, moral rights are finite. That is, the right of attribution and the right of integrity last only as long as the work is in copyright. When the copyright term comes to an end, so too do the moral rights in that work. This is just one reason why the moral rights regime within the UK is often regarded as weaker or inferior to the protection of moral rights in continental Europe and elsewhere in the world.

    RIGHT OF ATTRIBUTION

    The right of attribution provides the creator of certain types of work with the right to be identified as the author of their work, so long as the creator has asserted his or her right.

    The right of attribution covers works of literature, drama, music, art and films, and generally applies whenever the work is published commercially, performed in public or communicated to the public. However, there are a number of exceptions to this basic rule. For example, the right of attribution does not apply to works created for the purpose of reporting current events, contributions to newspapers, magazines and periodicals, works owned by the Crown or Parliament, or computer programs and computer generated work.

    Also, the right of attribution does not arise unless it has been asserted by the creator of the work. In practice, a statement such as the example given below is often included in published work in order to make clear that the creator has asserted their moral rights:
    The right of Joseph the Toymaker to be identified as author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

    RIGHT OF INTEGRITY

    The right of integrity allows the creator to object to derogatory treatment of his or her work, or any part of it.

    Like the right of attribution, the integrity right covers works of literature, drama, music, art and film. Similarly, the right of integrity does not apply to works created for the purpose of reporting current events, contributions to newspapers, magazines and periodicals, or computer programs and computer generated work. However, unlike the right of attribution, the integrity right does not need to be asserted.

    Subjecting something to a derogatory treatment means adding to, deleting from, altering or adapting the work in such a way that it amounts to a distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the creator. Put another way, the right to integrity stops other people from modifying an author’s work in a way that may have a negative effect on the author’s reputation.

    This does not mean that all forms of addition, deletion, alteration or adaptation will amount to a derogatory treatment.

    For one thing, the law specifically provides that certain types of treatment fall outside the scope of the right. For example, translations of literary and dramatic works do not infringe the right of integrity, nor does simply arranging or transcribing a musical work into another register or key.

    Also, your treatment of the work must be derogatory in that it is prejudicial to the honour or reputation of the person who created the work. But as we shall see, establishing prejudice to honour or reputation is not always straightforward.

    THE CASE: Confetti Records v Warner Music UK Ltd [2003] EMLR 35

    This case involved a piece of garage music composed by Mr Andrew Alcee, titled ‘Burnin’, which he sold to Confetti Records. Confetti Records arranged to license the song to the defendant, Warner Music UK Ltd. Warner Music produced an album including a rap version of Mr Alcee’s song by The Heartless Crew in which the band overlaid lyrics containing various references to violence and drug culture. In turn, Mr Alcee complained that his right of integrity in the music had been infringed.

    Mr Alcee complained that the words overlaying his music glorified violence and drug culture. However, one problem he faced in establishing his case was that, when played at normal speed, the words of the rap were very hard to decipher. And even when played at half speed, it was not always clear what the phrases were, or what they meant. In short, if the lyrics could not be understood, it was difficult for Mr Alcee to claim that they were damaging to his reputation.

    Another problem concerned evidence of harm to reputation. The court made clear that merely distorting or mutilating a work did not infringe the right of integrity unless the author could show prejudice to his honour or reputation. ‘However,’ the judge commented, ‘it seems to me that the fundamental weakness in this part of the case is that I have no evidence about Mr Alcee’s honour or reputation. I have no evidence of any prejudice to either of them.’ In the absence of any evidence that Mr Alcee’s honour or reputation had been harmed, the judge was not prepared to find that his right of integrity had been infringed.

    FOR DISCUSSION: DEROGATORY OR NOT, WHO DECIDES?

    In some countries, determining whether the right of integrity has been infringed depends on the subjective view of the author. That is, the courts will generally be guided by the author’s assessment in deciding whether the work in question has been subjected to a derogatory treatment.

    In the UK, however, the courts have preferred a more objective approach. So, it is not sufficient that the author is annoyed or aggrieved by what has occurred. Instead the court must be convinced that a reasonable and objective person would regard the treatment as derogatory and damaging to the author’s reputation.

    Did the court come to the right decision on Mr Alcee’s claim regarding his right of integrity? Should the courts take a subjective or a more objective approach regarding infringement of the integrity right?

    Having watched the video, do you think that by portraying Joseph’s toy hanging from a tree, the street artist has infringed Joseph’s moral rights? Do the graffiti amount to a derogatory treatment of Joseph’s copyright work? Is some of the graffiti more derogatory than the other?

    USEFUL REFERENCES:

    Confetti Records v Warner Music UK Ltd [2003] EMLR 35

    The Copyright, Designs and Patents Act 1988 is available here. Sections 77-83 set out the scope of the right of attribution and the right of integrity.

    Download the PDF version of Case File #11 – The Mutilated Work.

  • 12. The Hollywoodland Deal

    TheGirl_07

    Joseph explains to Holmes and Watson when and why the dreadful images of his beautiful, wonderful toy began to appear all over London. When ‘some guys’ from Hollywoodland approached him ‘to option a movie’ featuring his toy, Joseph decided to go along with the deal: after all, ‘they offered lots of money’. But as soon as word got out about the deal, that’s when the graffiti started.

    This Case File #12 considers who owns the copyright in a work when it is first created, as well as different ways in which the copyright in a work can be commercially exploited, whether by assignment or by licence.

    FIRST OWNERSHIP OF COPYRIGHT

    The Copyright Designs and Patents Acts 1988 sets out that the author of a work is also the first owner of the copyright in that work. There is, however, one major exception to this basic rule: if you are employed by someone else, and you create work during the course of your employment, the copyright in that work will generally belong to your employer.

    Joseph is self-employed. As such he is the first owner of the copyright in the original drawings for his beautiful, wonderful toy. As the copyright owner, Joseph enjoys a bundle of exclusive economic rights such as the right to copy his work, the right to issue copies of his work to the public and the right to communicate the work to the public, for example, by posting it online. This means that Joseph can prevent others from doing any of these things without his permission, unless their use is otherwise permitted by law.

    When he is approached by the businessmen from Hollywoodland about making use of his toy in their movie, Joseph has a choice: he can assign the rights in his work to them, or he can grant them a licence to make use of his work.

    ASSIGNMENTS

    An assignment of copyright involves a transfer of the ownership of the copyright from one person to another.

    However there is no need to assign the entire bundle of economic rights in a work at the same time to the same person. Indeed, assignments of copyright can be quite specific about what rights are being transferred (what you are allowed to do), for how long (a year, or ten years, or perhaps for the entire copyright term), and jurisdiction (where in the world you can make use of the work). For example, an author might assign the right to turn her work into a film to an American production company, while assigning the right to publish the work to a British-based publisher. The publisher, in turn, might assign the right to publish the work in a foreign language, whether in Europe, Asia or South America, to an overseas publisher.

    Whatever the nature of the assignment, it is important to know that the assignment must be in writing and signed by or on behalf of the assignor (that is, the person making the assignment).

    LICENCES

    A licence is essentially a permission to make use of a work in a way that, without permission, would constitute copyright infringement. In other words, the grant of a licence means the licensee (the person to whom the licence is granted) can make use of the work without infringing the copyright in the work.

    When granting a licence the copyright owner retains an interest in the copyright; that is, unlike an assignment, with a licence no property interest passes from the copyright owner to the licensee.

    As with assignments, licences can be quite specific in terms of the rights involved, and the duration and geographic reach of the permissions granted. You can read more about licensing and exploiting copyright works on the Copyright User website.

    People often get the two different spellings of licence/license confused. To clarify:

    1. Licence (spelt with a ‘c’) is the noun: ‘I grant you a licence to make use of my work’.
    2. License (spelt with an ‘s’) is the verb: ‘I license the use of my work to you’.

    THE CASE: Noah v Shuba [1991] FSR 14

    Dr Noah was a specialist medical practitioner who worked as a consultant in the Communicable Disease Surveillance Centre of the Public Health Laboratory Service (the PHLS). While he was working for the PHLS he wrote a medical pamphlet, A Guide to Hygienic Skin Piercing.

    The PHLS claimed that, as Dr Noah’s employer, it owned the copyright in the pamphlet. PHLS pointed to a number of factors in support of its claim: Dr Noah had discussed the content of the pamphlet with his colleagues in work; he made use of the PHLS library in preparing his manuscript; he asked his secretary to type up the manuscript; and, the PHLS had agreed with Dr Noah to cover the costs of printing and publishing the Guide. For all these reasons, PHLS claimed copyright in the work.

    Dr Noah disagreed. Although he was PHLS’s employee, he argued that the work had not been written in the course of his employment.

    The judge agreed with Dr Noah. Of particular importance, in the judge’s view, was that Dr Noah had actually written his manuscript at home in the evenings and at the weekends, and that he had done so on his own initiative and not at the request or on the direction of his employers.

    FOR DISCUSSION: WHOSE IS WHAT?

    When considering copyright ownership disputes between employers and employees the courts often consider whether making the work falls within the normal type of activity that an employer could reasonably expect from or demand of the employee. That certainly seemed to be a relevant consideration for the judge in this case. Do you think the judge came to the correct decision?

    Do you think the law strikes the right balance between the interests of employers and employees in presuming that employers typically own the copyright in work created by their employees? Can you think of any professions in which the presumption should be that employees retain the copyright in their work?

    What would your advice be for Joseph? Should he assign rights to the Hollywoodland film-makers, or grant them a licence?

    USEFUL REFERENCES:

    Noah v Shuba [1991] FSR 14

    The Copyright, Designs and Patents Act 1988 is available here. Section 11 sets out the basic rules on the first ownership of copyright. Also, sections 90-92 for relevant provisions on assignments and licences.

    You can find lots of information about copyright licensing and managing your rights on various UK collecting society websites, such as Authors Licensing and Collecting Society, PRS for Music, DACS, and others.

    Download the PDF version of Case File #12 – The Hollywoodland Deal.

 

CREDITS

Film

Written, Produced and Directed by Ronan Deazley and Bartolomeo Meletti
Art Direction / Design / Animation: Marco Bagni
Illustrations: Davide Bonazzi
Music / SFX: Sarc:o
Voice-over Artists (londonvoiceover.co.uk):
Joseph – Vincent Brimble
Sherlock Holmes – Cliff Chapman
John Watson – Anton Saunders

Case Files

Authors: Hayleigh Bosher and Dinusha Mendis
Editor: Ronan Deazley
Design: Marco Bagni
Production: Bartolomeo Meletti

Principal Investigators, CopyrightUser.org: Kristofer Erickson (University of Glasgow) and Dinusha Mendis (Bournemouth University)

 

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