Issue
Whether Ms. Lei Lan (the clinet) is liable in the case. If yes, what else she can do in order to avoid more strict penalties.
Rules
Copyright is an intangible asset for the owner. It gives the right to owner that only he/she can use a particular element. In other words, copyright is a bunch of legal entitlements and rights that an artist own in respect to his/her unique and creative work. The owners of a copyright have full entitlement to keep their creation available for only personal use and they also can earn license fee, royalty and other incomes form such copyrights. Every country has it is own different law and legislation on the subject matter of copyright.
In Australia, Copyright Act 1968 (Cth) (hereinafter referred as an act) is there that consist entire law related to copyright. The act includes all the provisions related to it is applicability, use of copyright, infringement, and legal rights of the parties. This is a federal legislation and therefore the act applies to the whole of Australia (Wipo, 2018). Copyright protects a specific range of materials such as artistic, dramatic, and musical works, sound recording, literacy and so on. Copyright also applies to lyrics. This is to inform here that in Australia, one need not apply for the registration of copyright. It is a right that law grants to the owner of a creation sue moto. As soon as the original work of artist gets complete and record in any way, such works become a copyright of the owner.
Rights of a copyright owner:- The act consists all the rights of a copyright owner in respect to his/her creation. Further, by looking after the decisions given in many of the cases, it can be stated that a copyright owner gets exclusive right to deal with their creation, developed material in certain ways. These rights also include the right of reproduction of work including filming, photocopying, scanning, and recording (University Library, 2018). Further, a copyright owner has the right to communicate his/her work to the public and to make an adaptation.
Infringement: – Infringement refers to a situation where a person uses the right of other people without their permission. In a literal meaning infringement is an unauthorized use of an element. In the subject matter of copyright, infringement is a circumstance where a person does not respect the exclusive rights of a copyright owner and uses his/her creation without the permission of the owner (Fitzgerald and Gilchrist, 2015). This is not acceptable under the act. However, while giving the decision of a case, the court considers that whether the infringement actually happened or not. An infringement of a copyright assumes to be there in those cases where a person uses a substantial part of an original work of other permission without the necessary permission (Arts Law, 2018).
This is to state that copyright only provides to that artistic work, which is original, itself. It means the work must be original to get a copyright. Division 4 of the act is important to study in this context. This division states some circumstance where a particular act of a person do not consider and counted as an infringement of copyright in the sector of dramatic, literary, and musical (Australian Government, 2018).
Here, the term ‘literary’ includes the lyrics of a song. If any person uses the lyrics written by another person then the act of such person shall consider as infringement. Some exceptions are there, when even if a person uses the musical work of another artist, then also his/her will not be treated as Infringement. These exceptions are also known as defenses. Following are two of the cases, which is related to song lyrics infringement. Court has given the opposite decision in both of the cases.
“Shake it off” of Taylor swifts
In the year 2014, the song titled Shake it off became very famous. The two persons, Nathan Butler, and Sean Hall were writers of another song named “Playas Gon’ Play” which has been released in the year 2001. These persons initiated a suit against Taylor Swift and writers of the song shake it off (Chiu, 2017). In their sue, they have made a claim that that writers of the song Shake it off, stole their lyrics form the songs of Playas Gon’ Play. In the decision of this case, the court clearly stated that the claim made by Nathan Butler and Sean Hall is not a valid one. The reason behind the same was that the lyrics of the original song i.e. Playas Gon’ Play were too common and could not be considered as a subject matter of copyright in the lack of originality (Stevens Vuaran Lawyers. Com, 2018).
By looking upto decision of this case, this can be concluded that if the lyrics of a song is not original itself or has a very general nature then the writer cannot held anyone liable for the infringement of copyright.
Men at Work’s Down Under Kookaburra
In this case, the issue was related to a song titled as “Kookaburra Sits in the Old Gum Tree” which was written by a person named Marion Sinclair in the year 1934. After the death of this writer, the rights in the lyrics of this song has been transferred to Larrikin Music. After around 28 years, Larrikin Music initiated a case against the band named Men at work claiming that this band used the lyrics of Kookaburra Sits in their new song Down under, which was a great success (News, 2018). After many of the proceedings, in this case, the decision thereof has been granted in the favor of Larrikin Music. The music company has received 5% of the income of new song as royalty from the year 2002 (Akbarzadeh and Atacador, 2011).
The decision given in the case provided a base for believing upon the fact that if a person uses someone’s original lyrics and show the same as his/her own then such act of the person will count as infringement.
Rules related to Copy of lyrics: – According to the provisions of Copyright Act 1968 (Cth), as soon as a person writes original lyrics, the same becomes his/her copyright without making any application. Further, when a person gets a copyright with respect to lyrics written by him/her then, he/she get exclusive rights on the use of such lyrics. The right of communication is another right available with the owner of a copyright. However, if a person uses such lyrics for the domestic purpose or performs the same for a local entertainment in society then such performances and acts cannot be treated as infringement.
Under the communication right, a composer or writer of a song of lyrics has exclusive right to communicate a song to public online. It means if any other person communicates such song publically on an online platform such as on website or YouTube then, this will be treated as infringement. In conjunction with this, in case of lyrics, only the song writer or composer can reproduce the same. Any other person cannot make a new creation by using those old lyrics (Apra Amcos, 2018).
Note:- The important note in this context is that section 33 (2) of the act provides that the copyrights related to music, drama and other artistic works provide a safeguard to the author of work throughout his/her life and ben after 70 years of death (Austlii, 2018).
Remedies:- In case of infringement, the court can provide a different kind of final order such as a share in profit, damages, and an injunction (Australian Copyright Council, 2017).
Application
In the given case, you were not a song writer but was a singer and composer. You were fond of singing and were engaged in developing your own recording. As stated in the case study that you were not good at writing the lyrics, you have decided to create new recordings by using the already existed lyrics.
You have used some of the lyrics from the books of poetry written by Shakespeare. In addition to this poetry, some of the lyrics she got from the old songs. These songs were well known and famous too. For instances, you took some of the lyrics from the songs sung and written by famous singers and bands such as Kanye West, The Beatles, and Justin Bieber. These songs were not older than past 50 years.
You had a blog, which you were using to promote your music. Your blog contented your music recordings and in addition to such recording, the Youtube links of the music of your favorite artist were there. Your site was working good and was successful to attract the attention of many people. The people across the globe were downloading your music recordings. However, the issue of the case started when once you have received an e mail from the legal team of Kanye West. As one of the people named Araminta posted that you might breach the copyrights of other authors, this is assuming here that the reason behind sending this notice was to initiate an action against you for stealing the lyrics of the songs written by Kanye Wests.
As the songs were not older than 50 years, applying the provisions of section 33 (2) of the act, lyrics of the song will be treated as copyright. You used those lyrics without taking permission of the original writer, which was an infringement of copyright. As per the provision of the act, you will be held liable for the infringement of the copyright as you have used the lyrics of other writer and also communicated to the public through an online mean. Here in the case, you were required to take the prior approval of Kanye Wests before using lyrics written by Kanye Wests in your music recordings. As you have failed to do so, therefore, Kanye West or her legal team on behalf of her is entitled to initiate an action against you.
However, in your defense, you can state that she had no mala fide intention and you have also used your scores only, but your these defenses do not seem to be a valid one. As you are liable in the case, the court can grant an order in against of you
Conclusion
In conclusion, this is to be stated that you are liable to use the lyrics written by another writer as you have not taken any prior permission before doing so. Further, you do not have any valid defense as you were using the lyrics for commercial purpose and communicate the lyrics to public online. Kanye West can held you liable for the infringement of her copyright and can ask for the damages or royalty out of the income of your sound recording. In addition to this, the court can also order for an injunction. This is to advise that you must stop using lyrics of other people, especially in those circumstances when she is not taking permission of anyone. Further, if you wants to use the lyrics of other people, this is advisable to use the same not for commercial purpose or on any public ground. In addition to this, you are advised to settle the case outside of the court to escape unnecessary judicial proceedings.
References
Akbarzadeh, A., and Atacador, J. (2011) It’s over: High Court will not hear Kookaburra v Down Under copyright appeal.
Arts Law. (2018) Copyright In Music And Lyrics.
Austlii. (2018) Copyright Act 1968 – Sect 33 Duration of copyright in original works.
Australian Copyright Council. (2017) Infringement: Actions, Remedies, Offences & Penalties.
Australian Government. (2018) Copyright Act 1968.
Chiu, M. (2017) ‘Ridiculous’ Copyright Lawsuit Against Taylor Swift for ‘Shake It Off’ Is ‘Nothing but a Money Grab,’ Says Rep.
Fitzgerald, B., and Gilchrist, J. (2015) Copyright Perspectives: Past, Present and Prospect. Australia:Springer.
News. (2018) Men at work plundered Kookaburra riff: court.
Stevens Vuaran Lawyers.Com (2018) If it’s not original, it will be dismissed Swiftly – the lessons from the “Shake it off” copyright case.
University Library. (2018) Copyright.
Wipo. (2018) Copyright No. 63 of 1968.
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