You are a composer and a singer. You write your own scores, and use lyrics that are not your own because you admitted to be poor in that regard. In your admission, while some of the lyrics come from poetry authored by Shakespeare; others emanate from the songs by Beatle, Justin Bieber and Kanye West. You also stated that you have never sought their permission in your use of their works; despite employing and incorporating them in your music.
You also indicated to us that in promoting your music you use homemade recordings as well as features link drawn from favorite artists on you tube. Further, you pointed out that you have received an email from Snark Hellgore notifying of a forthcoming legal battle.
Lastly you informed us that one Araminta posted via a Facebook platform statements that associated you with infringement of other artists’ copyrights. You noted with concern that Araminta has been incessant with her post without regard to the number of people who view the post. It was your concern that her post portrays a bad picture to the consumers of your music.
Your request was for a legal advice on the way forward. Having sufficiently captured your story, at least in our judgment we proceed to highlight legal issues that are disclosed and the law the basis upon which we will tender our advice.
Having highlighted the issues, we proceed to analyze each issue taking into account the position of the statutes and case law.
The primary Act, Copyright Act 1968 does not define the term copyright. The term has however been defined by scholars. One of the scholars define it as an exclusive right that is vested on a creator of a work to use it in whatsoever manner be it printing, publishing or copying it (Thompson, 2007 P. 1).
According to Thompson (2007 P. 1), a number of expressions can be copyrighted, for example: literary, which covers materials like books; dramatic, which concerns plays; artistic, which involves images; musical, which covers songs; films; sound recordings; broadcasts; published editions; and contents of websites and emails. It is noteworthy that copyright exists automatically a work is created, and registration is therefore not a mandatory requirement though not excluded. It can be done at one’s own volition.
Any other person apart from the owner who uses a copyrighted work must seek consent from the owner, the consent can be granted via a license or assignment; where that consent is not obtained, an infringement is held to have occurred. In that case, the owner entitled to remedies such as damages, injunction among other equitable remedies available as the court may deem fit to award.
The is the general rule, however the Act tampers with this general rule by striking a balance between on the one hand, the incentive to creative work and on the other hand the public interest (Berg and Breheny, 2014 P. 2). The intention is to oil the monopolistic tendencies that may follow absolute rights given to a copyright owner. This is because, the government has the guarantor of public interest must not sit back and watch copyright owners abuse or in any exploit the vulnerable citizenry.
Accordingly therefore, there exists within the auspices of the Act the fact that has been upheld by judicial pronouncements that a copyrighted material or expression can be used with a non-owner without a claim of infringement being invoked or otherwise pursued. The starting point is 40, which provided thus:
“A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation of a literary, dramatic or musical work, for the purpose of research or private study does not constitute an infringement -of the copyright in the work”.
“A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation of a literary, dramatic or musical work, does not -constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work; and a sufficient acknowledgement of the work is made”.
At section 45 the Act provides acknowledgement as the first shield to non-owners; section 46 allows use for domestic purpose; section 47 for broadcasting. Further with regards to literally work, use for non-profit purposes is provided not to constitute infringement. Non-profit purpose can include employment of a work in academia.
In Carious v Prince, 714 F. 3d 694 (2d cir.2013): before the court was a determination of what constitutes fair use as a defence to infringement of copyright; the defendant used the plaintiff’s photograph to come up with a new meaning. Finding that the changes were insignificant and the photograph was substantially the same, the court ruled in favor of the plaintiff (Ellison, 2013).
According to Lynette (2015 P. 3), to invoke a defence of fair dealing or use, the unauthorized user must have either acknowledged the owner or employed the work for non-commercial purposes. It therefore boils down to the circumstances of the case; even though the following factors have overtime acted as a guide in determining what amounts to fair use: the object or target and the manner of the use; the type of the work; the amount or divvy of the piece of work used; and the impact the use has on the market (Lynette, 2015 P. 4).
Further, a claim on infringement of copyright will not lie where its duration has expired. Generally, copyright expires 70 years after the date of the demise of the author (Thompson, 2007 P. 3). Whenever copyright has expired, its use is open to every person as all the rights by the owner are extinguished.
In Rogers v Koons, 960 F. 2d 301(2d Circ. 1992): the issue for determination before the court was whether the appropriation of the plaintiff’s photographs was infringement of copyright or fair use. The court found that the defendant could not rely on fair use and ordered him to pay the plaintiff out of the proceeds obtained from the sale of the infringing items.
In the Associated Press vs. Fairey (Ellison, 2013): the parties in this case made monetary settlements without having to undergo litigation.
Libel is a defamatory statement published in any manner be it written or in electronic form (https://thelawdictionary.org). Defamatory means such a statement must be untrue. Matters libel brings to question the Constitutional right on freedom of expression, regard must therefore be taken to ensure it does not gage discussion of public matters. In recognition of the above, under section 3, Defamation Act 2005 is very particular in its wording that it was intended to ensure defamation laws does not restrict publications and discussion on public matters. It was also intended to remedy harm to reputations.
According to the Act, libel is a civil matter and falls under torts. Per Section 7, it is actionable per se, meaning without proof of special damages. Under Part 3 of Defamation Act 2005, litigation is not the only remedy that is available for a person who has been defamed; offers to make amends, and apologies are available.
According to part 4 of Defamation Act 2005; where the parties decide to go for litigation, it must be established that the defendant authored the defamatory statement and that no defence is available in his/her favor. If no defence exists, the court is to assess the damages that the plaintiff is entitled to.
Further, within the holding of part 4 of the Act, defences for infringement are provided the include: honest opinion; absolute privilege; justification;; publication of public documents; fair report of public concern; innocent dissemination; qualified privilege; trivialities; contextual truth. The remedies that are available and that the court can award includes damages; the Act is very clear that exemplary damages cannot be awarded. This is geared towards staying clear from being too punitive to gage engagement in public discourse in form of debates.
In Wilson v Bauer Media Pty Ltd (2017, VSC 521 (Australia): the plaintiff instituted a defamation claim against defendants. The defendants being the publishers of the women’s day magazine ran a story on claimant’s age, name, life events and upbringing. At the center of her prayers was an award of special damages and general damages for business opportunities that she lost on account of the publication. The court found in her favor and awarded her special and general damages.
Whereas under the Act, it is clear that libel is actionable per se; one must prove damages suffered to be awarded damages in a libel suit. In Lachaux v Independent Print Ltd (2017, EWCA Civ 1334 (England): the judge was particular that one must prove serious harm to their reputation. The import of the above case was that the standard of proof was higher than ordinary civil claims; the claimant is therefore required to build a strong case to obtain award of damages.
As regards infringement of copyright, there is high likelihood that you will be found to have infringed on copyright with regards to pieces of work by the Beatles, Justin Bieber and Kanye West. The ground being that no defence is available in your favor. First, you have never sought their permission to use their work. Second, you will have to evidence acknowledgement of various work that you have used that are not your original work. Third, to bring yourself within the purview of the defence of fair use, you will have to establish non-commercial use of the works. Third, you will have to establish that the copyright had expired by the time you were using the works. Discharging the burden of proof with regards to the above factor will admittedly be an arduous task.
If in your opinion you are in agreement with the fact that a finding of infringement is likely to be made then as demonstrated by case law in our earlier discussion; settlement without having to go court would be a better avenue. It is a cost effective way of resolving disputes and does not waste much time. Additionally, it is private and is not often publicized, it will therefore create a favorable environment in that you not have to face the embarrassment from your followers if at all you lose the case.
As regards an action for libel; we did point out that it is actionable per se; however, this action is dependent on the first action. First, if it is established that you did infringe on others’ copyright, then she/he has a defence of truth, justification and honest opinion. This would be the same case if you pursue out of court settlement in the infringement matter. Second, dragging Araminta to court may attract an order for cost in her favor. We therefore strongly advice against pursuing this matter.
Our next meeting is scheduled for 10 October 2018 at 10.00 am when we shall discuss the way forward.
Yours sincerely
The constitution
Copyright Act 1968
Defamation Act 2005
Rogers v Koons, 960 F. 2d 301(2d Circ. 1992)
Carious v Prince, 714 F. 3d 694 (2d cir.2013):
Wilson v Bauer Media Pty Ltd (2017, VSC 521 (Australia)
Lachaux v Independent Print Ltd (2017, EWCA Civ 1334 (England)
The Associated Press vs. Fairey (Ellison, 2013)
Berg C. and Breheny S., (2014) Submission to Australian government Online Copyright infringement Discussion paper. Institute of the voice of freedom established− 1 9 4 3.
Thompson H., (2007) introduction to copyright. University Copyright Office, University of Melbourne.
Ellison K. (2013) 5 famous copyright infringement cases (and what you can learn). Available from: https://99designs.com/blog/tips/5-famous-copyright-infringement-cases/ 23 September 2018
Lynette O., (2015) Fair dealing: a concept in UK Copyright law. Journal of Scholarly Publishing, University of Toronto Press 3, 28.
Others
< https://thelawdictionary.org>
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