Photo of camper van kindly supplied by iStock Photo as a royalty-free image
Copyright is a fascinating area of intellectual property law. There has been a range of different discussions, from whether Tweets are copyrightable, to who actually owns the copyright of images of people who are photographed (such as the famous Robert Doisneau image). A full description of the background to the law of copyright is provided here.
There are a number of interesting examples of reported breaches of music copyright infringement, such as George Harrison vs Bright Tunes Music Corp., Michael Bolton vs the Isley Brothers, Johnny Cash vs Gordon Jenkins, Vanilla Ice vs Queen & Bowie, and John Fogerty vs Creedence Clearwater Revival.
In a famous case Ludlow Music Inc. v Williams (No. 2) [2002] EWHC 638, heard at the Chancery Division of the High Court, the material facts are introduced thus:
[para. 1] “The claimant, Ludlow Music Inc. (“Ludlow”) is the owner of the copyright which subsists in the works of the celebrated American musician Woody Guthrie. In 1961 Woody Guthrie composed the lyrics and music of a song called “New York Town”. In 1973, the songwriter Loudon Wainwright III composed a parody of Woody Guthrie’s lyrics called “I am the Way (New York Town)”, which was set to the same music. The claimant owns the copyright in the Loudon Wainwright III lyrics. The first defendant, Robbie Williams, is the well-known pop singer. With the second defendant, Mr Chambers, he is the composer of a composition whose title is “Jesus in a Camper Van”. Mr Nicholas Strauss Q.C. sitting as a deputy judge of the Chancery Division held on an application for summary judgment under CPR, Pt 24 (now reported at [2001] F.S.R. 271) that the lyrics of “Jesus in a Camper Van” infringed the copyright in the lyrics of “I am the Way (New York Town)”. There is no suggestion that there is any infringement of Woody Guthrie’s musical work. The judge reserved the question of damages to this hearing, in the light of an open offer which had been made by the defendants before the proceedings started.”
Proving the infringement is itself a very interesting affair. Part of this argument is addressed in para. 1 of Ludlow Music Inc. v Williams [2001] E.M.L.R. 7
“This was copied to Alison Rowden, EMI’s sampling/infringement manager, who states that she thought it was borderline whether a substantial part of “I am the Way” had been copied and whether copyright clearance was required. She wrote to Evelyn Sasko on August 21 enclosing a tape. She said:
With regard to “Jesus in a Camper Van”, you will note that its similarity to “I am the way (New York Town)” is lyrical only and is limited to two lines. Furthermore, the lyric we use is not exactly the same and in our opinion the context and the use of the two songs overall are very different. We feel that “Jesus in a Camper Van” contains elements inspired by, rather than directly copied from, “I am the way (New York Town)”.
In “Case No. 2″, as for the amount of damages, a very interesting discussion commences at para 37:
“Section 96 of the Copyright, Designs and Patents Act 1988 (the “1988 Act”) provides that in an action for infringement, and subject to the provisions of Chapter VI of the 1988 Act, “all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right”. Section 97 makes provision for damages in infringement actions:
97.
(1) Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2) The court may in an action for infringement of copyright having regard to all the circumstances, in particular to—
- (a) the flagrancy of the infringement, and
- (b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may require.
This case raises issues both as to the proper approach to damages for infringement generally and as to additional damages in particular.”
This discussion is pursued in para 38, where it is suggested that the notion that damages in copyright infringement actions compensate the claimant for the depreciation in the value of the copyright caused by the activity of the defendants is “not a particularly helpful formulation”. The judgement then argues that in General Tire v. Firestone [1975] 1 W.L.R. 819, [1975] R.P.C. 197, the principles are comprehensively set out by Lord Wilberforce.
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