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copyright dispute

Copyright Infringement and Copyright Disputes

copyright disputeThe most common copyright dispute we see involves an image used on a website which the website owner does not own or have permission to use.

The reason this happens is that either a web designer has grabbed an image from the internet and used it in the site design, or someone within the business has done so. This mistake is invariably caused by the assumption that material on the internet is in the public domain and may be freely used.  Alternatively, people unwittingly use material that infringes on someone else’s rights because they had not realised that the copyright licence they obtained does not permit them to use the image for the purpose or in the ways they have used them.

Infringement is sometimes deliberate. For example, there may be an existing contractual arrangement in place governing copyright and the contract is terminated, breached or is otherwise in dispute.

As the copyright owner is the person that has exclusive rights to copy and distribute the image or other copyright works, infringement disputes can arise all too often.

Where someone copies or distributes copyrighted work without the authorisation of the copyright holder, they may be liable for copyright infringement. That is, unless they can establish that an exception applies or that they have a valid defence.

For example, there are exceptions to infringement in certain limited circumstances, such as. in certain situations where someone makes personal use of the work, rather than commercial use.

Copyright Ownership Disputes

When a work or product is created that the law protects through copyright, then the copyright in that work usually belongs to the person who creates it. The law refers to that person as the ‘author’.

Where a work is created by two or more people, it can be complicated to work out who owns the copyright. So, whenever a work is created jointly with others it’s important to discuss how to control that ownership so that the work can be exploited even if a dispute arises between the copyright owners.

Copyright infringement might arise if there have been many changes in ownership as it is difficult to work out who owns the copyright, and can give permission to use it.  For example, if you see an image on a website that you want to use and ask the website owner if you may use it, then even if they give you permission, you could be infringing copyright unless they have permission to give someone else permission to use the image.

Note that where work is commissioned from another business or freelancer it is sensible to clarify in writing who is to own the copyright.

The legal rules that apply in default, lead to some surprising consequences. Where a contract is not used disputes are much more likely to arise.

 

Resolving Copyright Disputes

The first step in a copyright infringement dispute might be a cease and desist letter.  If you receive such a letter get legal advice.

Copyright infringement disputes are normally resolved through negotiation between the parties. Failing an agreed settlement the dispute would be decided by the courts.

 

Copyright – Who’s Hiding Under Your Bed? Hairy Monsters And Non-Literal Copying

You may be one of the eight million or so viewers who have already seen the John Lewis 2017 Christmas television advertisement  – Moz the Monster, featuring a lovable monster who hides under a child’s bed. If so, has it perhaps reminded you of any other lovable monster?

Having viewed the TV advert, the former children’s laureate, Chris Riddell, clearly felt that it copied his 1986 children’s book – Mr Underbed – featuring a big blue hairy monster who rocks the bed and snores loudly. A few days after the launch of the TV advert, Mr Riddell tweeted: “John Lewis helps themselves to my picture book”.

John Lewis has strongly denied any allegation of plagiarism, stating that the story of a big hairy monster under the bed, which keeps a child from sleeping, is a universal tale which has been told many times over the years. The department store went on to say: “Ours is a Christmas story of friendship and fun between Joe and Moz the Monster, in which Joe receives a nightlight which helps him get a good night’s sleep”, adding, “The main thrust of our story is utterly different”.

Non-literal copying

Although there is no indication that Chris Riddell plans to take formal legal action, his tweet highlights the longstanding tricky area in copyright as to non-literal copying, that is, copying of the ideas of an earlier work rather than the literal words or content.

In contrast to entrepreneurial works –  such as films and sound recordings – where, to infringe, the claimant must show copying of a substantial part of the actual film or recording, copyright in authorial works – such as literary, dramatic, musical, and artistic works – provides wider protection, going beyond the actual content itself.

For example, the author of a novel or a play is entitled in principle to object to the copying of the storyline, plot, incidents, and themes, although it may be more difficult to protect mere copying of the identity of a character. The composer of a musical work may object to the copying of melody or orchestration.

That said, at least in the realm of regular literary, dramatic, musical, and artistic works such as books, the UK courts have often struggled to come up with concrete rules for determining the frontier between acceptable and unacceptable copying. As a result, it is somewhat difficult to predict the outcome of legal actions concerning non-literal copying.

Ideas-expression dichotomy

The most common approach of the UK courts is to look to the so-called ideas-expression dichotomy which provides that, generally speaking, the law protects against copying of the expression of ideas contained in a work but not against copying of the ideas themselves. Under this approach, it is not an infringement to take the ideas or concepts behind, say, a book or song and to incorporate them into a later work. The tricky part is deciding what exactly is meant by the word “ideas” in this context.

The fact is that the law does protect against copying of mere “ideas” provided that those “ideas” are sufficiently detailed and involve sufficient intellectual creativity to warrant copyright protection. At the same time, the law does not protect ideas which are commonplace or which are essentially mere facts. Ultimately, while the courts in the UK are keen to prevent obvious plagiarism, they do not want to give a claimant a monopoly of knowledge or historical research.

In the well-known Da Vinci Code novel case in 2006, the Courts rejected a claim of copyright infringement brought by the authors of “The Holy Blood & The Holy Grail” who claimed that Dan Brown’s world-wide best-seller, the Da Vinci Code, infringed their book. In particular, they argued that Dan Brown’s page-turner had taken a substantial part of the “manner” in which they had expressed their ideas. The Courts rejected this argument, stating that while Dan Brown had expressly drawn on the ideas in their book, such use was merely to provide background material. In this case, the Courts were not prepared to find that the historical research and “facts” about the alleged real meaning of the “Holy Grail” enjoyed copyright protection.

What, then, might be the outcome if Chris Riddell were to claim that the John Lewis “Moz the Monster” TV advert was infringing copyright in his Mr Underbed book? Anyone familiar with the book Mr Underbed and who has watched the TV advert, may notice that both do indeed feature a large hairy, albeit friendly, monster. Visually speaking, both monsters share a large red nose and protruding triangluar-shaped teeth from both ends of its mouth. In terms of scenario, both monsters hide under their respective child’s bed, thus keeping the child from sleeping.

Conclusion

However, it would seem that the scenario of a monster hiding under a human’s bed is commonplace in story-telling and in literature. A friendly monster is likely to have features such as being hairy, having a big nose and protruding teeth. Moreover, young children are notoriously reluctant to go to sleep at night, especially if there is mention of a creature lurking in the dark.

On this basis, although for at least some viewers  – especially perhaps those with young children themselves – the John Lewis TV advert might have brought Mr Underbed to mind, it seems unlikely that this resemblance would be found to go beyond the mere “idea” of Chris Riddell’s book.

But, who really knows what may be hiding under your bed.

Co-written with Kieran Heneghan

The Benefits of US Copyright Registration in UK Disputes

There is a popular myth that the best way to protect your copyright is to send a copy of the work to yourself in an envelope and that you will be protected so long as you do not open the envelope. Sadly, courts are not often persuaded by this evidence due to the ease of tampering. There are better ways to prove you are the original creator of a work.

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