Copyright Infringement – what is it and how can it be avoided?

Copyright Protection

The Copyright, Designs and Patents Act (1988 )acts to support copyright owners in protecting their work from being copied by others. Generally speaking, copyright laws give ownership of work on creation to its author, whereby they will have the exclusive right to reproduce, distribute and display their work. Copyright also gives the owner control as to who can use their creation and how it can be used. An author’s work is protected under copyright laws when the work is created, provided certain conditions are met. Please click here to read about the criteria required for copyright protection.

On the contrary, if someone other than the owner of a work wishes to use the copyright owner’s work then, if they do not obtain permission from the owner of the work, they may fall within the ambit of copyright infringement. Copyright can, for example, be infringed by doing any of the following acts with a copyright work:

  • Copying the work.
  • Issuing copies of or lending the work to the public.
  • Performing or displaying the work in public.
  • Adapting or modifying the work.
  • Communicating the work to the public (e.g. via Internet).

There are some uses of copyright work that will not constitute infringement or which are permitted by law – for example, uses intended for specific purposes including research and private study, copying for data analysis and quotation from a work. In performing any of the permitted acts, you must work within the requisite parameters, as otherwise you could very quickly fall out of remits of a permitted act and into the remits of copyright infringement.

Recent cases

Two high profile US copyright actions have recently been the subject of much media attention:

  • The claim made by Andy Stone (AS) against the singer, Mariah Carey (MC) in the New Orleans courts. According to media reports, AS claims that he co-wrote the song “All I want for Christmas is you” with another author in 1988, much before Mariah Carey’s hit song by the same title was released in 1994. AS has asked for a compensation for the sum of $20 million on the grounds of copyright infringement, unjust enrichment (as MC sold over 16 million copies of the album globally) and unauthorised appropriation of AS’s work. AS has argued that MC never obtained permission from AS to use “All I want for Christmas is you”.
  • A claim filed in the Los Angeles courts against Paramount Pictures (Studio) for copyright infringement in connection with their sequel of “Top Gun” movie. The first instalment of the movie (released in 1986) was based on a 1983 article titled “Top Guns” by an Israeli writer, Ehud Yonay (Storywriter). Media outlets have reported that the Studio had acquired rights to adapt the article into a movie, however, the Storywriter’s family claim that they informed the Studio in 2018 that this right would be terminated two years later. The Storywriter’s family claim that the Studio lost the right to use the copyright in the article in January 2020 and therefore claim that the Studio has infringed the copyright in the article by releasing the film’s sequel in May 2022 on the grounds that the Studio failed to reacquire a licence to use its rights in the 1983 Article.

Whilst the above cases are founded on US legal principles, the English courts have also heard high profile copyright cases, including the April 2022 case involving Ed Sheeran and Sami Chokri due to alleged similarities in aspects of the songs ‘Oh Why’ by Chokri and ‘Shape of You’ by Sheeran . In this case, it was ultimately held that there was no copyright infringement, and a declaration of non-infringement was granted by the Court.

Copyright Licences

The risks of copyright infringement can be mitigated by undertaking analysis at the outset and, where appropriate, by ensuring that licences are in place, and making sure that they deal effectively and appropriately with any intended use of the IP for the duration of the required use.

The scope of a copyright licence may allow use, copying, adaptation and / or reproduction of the relevant copyright work within the parameters of the licence without infringing the owner’s Intellectual Property (IP) rights. It is important that such licences, once entered into, are reviewed periodically in order to make sure that any proposed change of use of the licenced work still complies with the terms of the licence.

How can we help?

Our Intellectual Property experts are on hand to support you, including advising on putting intellectual property rights licence agreements in place, tailor-made to suit your commercial needs. Please contact our commercial team.

Mark Chapman
Partner, Commercial
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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