SGS 1 - COPYRIGHT AND MORAL RIGHTS
Copyright: no need to register. Copyright is a property right and can be treated in the same way,
e.g. assigned, left in a will, granted a licence. Copyright, Designs and Patents Act 1988 (CDPA
1988)
Types of “Works” subject to copyright:
- Classic works, s.1(1)(a)
• classic works must be fixed by being recorded in
writing or otherwise s.3(2)
• must originate from the author
• must be ‘expressed’ cannot just be the idea itself.
- literary s.3
- dramatic s.3
- musical s.3
- artistic s.4
Joint Authorship:
- Hadley v Kemp - held that to be a joint author, a person must establish that s/he made a
significant and original contribution to the creation of the musical work.
- Fisher v Brooker -Where a band member makes a contribution to a song that “is both
significant (in the sense that it is more than merely trivial) and original (in the sense that it is the
product of skill and labour in its creation) and the resulting work is recorded (whether in writing
or otherwise), that band member is entitled to copyright in the work as one of its joint authors
and to any composing royalties that follow.”
- Kogan v Martin - important to note that the work of joint authors does not need to be equal
which may be significant for minor joint authors whose contributions might not have previously
been attributed. In the case of a screenplay, an individual who did commit the actual words to
paper, but came up with storyline, plot points or characters may still have a case for
succeeding in a joint authorship claim.
Author may not be the owner:
- employer may be the author if worked produced in the
course of employment
- where work is commissioned, the work is still the artist’s
original work, even though the commissioner may own
the physical copy.
- Duration of copyright:
- s.12-15
Defences
• Consent
• Licence
• Incidental inclusion
• no copyright exists
• Fair dealing
ANSWERING AN EXAM QUESTION
1. identify relevant copyrights s.1-6
- can copyright be established? The word/name may be too wide/remote/de minimis as in Exxon
Corp v. Exxon Insurance
- work needs to be original and incorporated with a sufficient degree of skill and effort
2. who is author? s.9/10
- consider joint authorship under s.10 and the case law which deals with the issues involved.
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,3. who is owner? s.11
- remember the the author is not always the owner: have they/might they have assigned/licensed
the rights?
4. moral rights? performers’ rights?
- if the band has a contract with a record company, they will have assigned their rights, including
performers’ rights, so permission for recording etc. needs to be sought from record co., not the
band
5. Identify cause of action:
Infringement of copyright s.16; the restricted acts
what copyrights exist?
who is infringing them and how?
3 stage test:
- Establish that there is a copyright to the work
I. Causal connection - has the C’s work been created before D’s? No need to prove the D
knew about the C’s work, but there will be an assumption of causal connection of this is
proven, and if D h2ad access to C’s work. Similarity should not be a mere coincidence.
II. Objective similarity - between the infringing work and the copyright work. If a causal
connection and objective similarity are established, this raises a presumption of copying.
e.g. storyline, names. burden shifts to D once presumption of copying has been
established by C.
III. Substantial element s.16(3)(a) - a qualitative test to be determined objectively; as in
Michael Beignet & Richard Leigh v. Random House Group Ltd. (Da Vinci Code case,
held that central theme was not copied, so no copying of a substantial part).
Infringement of moral rights:
- S.77-85
- gives rise to a claim for damages under breach of statutory duty s.103
- identify moral rights and their infringements in the same way as copyright
Infringement of performers’ rights:
- S.180-188 - and s.205 identify which rights exist in the scenario
- s.205C right to be identified as a performer co-exists with s.205D which requires that that right
be asserted.
- identify how they are being infringed
6. Defences
s.28-31, e.g. temporary/personal nature, research and private study, incidental inclusion, fair
dealing. Fair dealing is the most popular.
7. Remedies
s.96 - actionable remedies by copyright owner
s.99 - order for delivery up where the copyright infringement is capable of being possessed
s.103 - remedies for infringement of moral rights
s.205N - remedies for infringement of performers’ rights
ALSO CONSIDER:
Final injunction to stop e.g. further copies of a book being sold/made available
Damages or an account of profits under s.96.
If publicly available, s.99 provides for an order for delivery up of the copies, followed by
destruction.
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, SGS 2 - MUSIC INDUSTRY I
Performers’ Rights
Performers’ rights relating to performances listed under s.180(2): it is dramatic? musical?
• non-property rights relate to consents.181 and 182
• property rights relate to copies made of the recording s.182A-D
• also remember s.205C right to be identified as a performer co-exists with s.205D which requires
that that right be asserted.
Management Agreements:
Basis of relationship is: fiduciary (good faith), contractual, and agency
Considerations:
- skill and abilities of manager: business, general, and artistic
- proven track record in the relevant field of entertainment - references and recommendations?
- contacts? do the contacts extend into an area your client wants to expand into in the future?
- does the client have any specific requirements for a manager? e.g. remuneration, exclusivity,
hands-on/hands-off management style?
- if an individual, does the client want that particular manager by way of a ‘key personnel’
clause? or are they happy with the management company in general?
Duties expected of a manager:
- clear definition of ‘Services’!
- advising on whether to accept record/publishing deals
- advising on creative issues e.g. production/direction
- day-to-day professional arrangements; tours, promotional appearances
- contract negotiations for engagements; press, TV and radio/podcast appearances
- links to other professionals; solicitors, accountants
- maximising the artist’s profile pro-actively
- support and marketing and long-term planning
- acting as the artist’s agent, subject to the terms of the management agreement.
Remuneration:
- often linked to a percentage of the artist’s income as commission usually around 15-20%
- management agreement may cover other areas of entertainment for remuneration, on the basis
that the manager would be expected to help the artist expand into these areas.
- commission: linked to net or gross income? Depends on bargaining power of parties.
- manager also can sometime reasonably be expected to earn commission from projects/
activities agreed during the term of the agreement but which continue to produce income after
it has been terminated. This can be tightly controlled by negotiation.
- accounting and auditing provisions at least twice a year
- commission upon termination? cut-off date? or can related projects still accrue commission for
manager so long as the project continues?
Expenses:
- should only include items that are directly and solely associated with the the services the
manager provides to the artist
- should not include overheads that would be normally incurred under ‘general expenses’, e.g.
office expenses
- only things like travel for a particular gig, promotional and professional expenses
- artist can seek to limit this individual amount
Agency
- scope of manager’s powers must be clearly defined in the agreement
- artist should retain control over signing of any unusual, major or long-term contracts and limit
the manager’s ability to contract on behalf of the artist
- usually the manager is responsible for signing off on one-time appearances/matters on behalf
of their client
3 of 20
Copyright: no need to register. Copyright is a property right and can be treated in the same way,
e.g. assigned, left in a will, granted a licence. Copyright, Designs and Patents Act 1988 (CDPA
1988)
Types of “Works” subject to copyright:
- Classic works, s.1(1)(a)
• classic works must be fixed by being recorded in
writing or otherwise s.3(2)
• must originate from the author
• must be ‘expressed’ cannot just be the idea itself.
- literary s.3
- dramatic s.3
- musical s.3
- artistic s.4
Joint Authorship:
- Hadley v Kemp - held that to be a joint author, a person must establish that s/he made a
significant and original contribution to the creation of the musical work.
- Fisher v Brooker -Where a band member makes a contribution to a song that “is both
significant (in the sense that it is more than merely trivial) and original (in the sense that it is the
product of skill and labour in its creation) and the resulting work is recorded (whether in writing
or otherwise), that band member is entitled to copyright in the work as one of its joint authors
and to any composing royalties that follow.”
- Kogan v Martin - important to note that the work of joint authors does not need to be equal
which may be significant for minor joint authors whose contributions might not have previously
been attributed. In the case of a screenplay, an individual who did commit the actual words to
paper, but came up with storyline, plot points or characters may still have a case for
succeeding in a joint authorship claim.
Author may not be the owner:
- employer may be the author if worked produced in the
course of employment
- where work is commissioned, the work is still the artist’s
original work, even though the commissioner may own
the physical copy.
- Duration of copyright:
- s.12-15
Defences
• Consent
• Licence
• Incidental inclusion
• no copyright exists
• Fair dealing
ANSWERING AN EXAM QUESTION
1. identify relevant copyrights s.1-6
- can copyright be established? The word/name may be too wide/remote/de minimis as in Exxon
Corp v. Exxon Insurance
- work needs to be original and incorporated with a sufficient degree of skill and effort
2. who is author? s.9/10
- consider joint authorship under s.10 and the case law which deals with the issues involved.
1 of 20
,3. who is owner? s.11
- remember the the author is not always the owner: have they/might they have assigned/licensed
the rights?
4. moral rights? performers’ rights?
- if the band has a contract with a record company, they will have assigned their rights, including
performers’ rights, so permission for recording etc. needs to be sought from record co., not the
band
5. Identify cause of action:
Infringement of copyright s.16; the restricted acts
what copyrights exist?
who is infringing them and how?
3 stage test:
- Establish that there is a copyright to the work
I. Causal connection - has the C’s work been created before D’s? No need to prove the D
knew about the C’s work, but there will be an assumption of causal connection of this is
proven, and if D h2ad access to C’s work. Similarity should not be a mere coincidence.
II. Objective similarity - between the infringing work and the copyright work. If a causal
connection and objective similarity are established, this raises a presumption of copying.
e.g. storyline, names. burden shifts to D once presumption of copying has been
established by C.
III. Substantial element s.16(3)(a) - a qualitative test to be determined objectively; as in
Michael Beignet & Richard Leigh v. Random House Group Ltd. (Da Vinci Code case,
held that central theme was not copied, so no copying of a substantial part).
Infringement of moral rights:
- S.77-85
- gives rise to a claim for damages under breach of statutory duty s.103
- identify moral rights and their infringements in the same way as copyright
Infringement of performers’ rights:
- S.180-188 - and s.205 identify which rights exist in the scenario
- s.205C right to be identified as a performer co-exists with s.205D which requires that that right
be asserted.
- identify how they are being infringed
6. Defences
s.28-31, e.g. temporary/personal nature, research and private study, incidental inclusion, fair
dealing. Fair dealing is the most popular.
7. Remedies
s.96 - actionable remedies by copyright owner
s.99 - order for delivery up where the copyright infringement is capable of being possessed
s.103 - remedies for infringement of moral rights
s.205N - remedies for infringement of performers’ rights
ALSO CONSIDER:
Final injunction to stop e.g. further copies of a book being sold/made available
Damages or an account of profits under s.96.
If publicly available, s.99 provides for an order for delivery up of the copies, followed by
destruction.
2 of 20
, SGS 2 - MUSIC INDUSTRY I
Performers’ Rights
Performers’ rights relating to performances listed under s.180(2): it is dramatic? musical?
• non-property rights relate to consents.181 and 182
• property rights relate to copies made of the recording s.182A-D
• also remember s.205C right to be identified as a performer co-exists with s.205D which requires
that that right be asserted.
Management Agreements:
Basis of relationship is: fiduciary (good faith), contractual, and agency
Considerations:
- skill and abilities of manager: business, general, and artistic
- proven track record in the relevant field of entertainment - references and recommendations?
- contacts? do the contacts extend into an area your client wants to expand into in the future?
- does the client have any specific requirements for a manager? e.g. remuneration, exclusivity,
hands-on/hands-off management style?
- if an individual, does the client want that particular manager by way of a ‘key personnel’
clause? or are they happy with the management company in general?
Duties expected of a manager:
- clear definition of ‘Services’!
- advising on whether to accept record/publishing deals
- advising on creative issues e.g. production/direction
- day-to-day professional arrangements; tours, promotional appearances
- contract negotiations for engagements; press, TV and radio/podcast appearances
- links to other professionals; solicitors, accountants
- maximising the artist’s profile pro-actively
- support and marketing and long-term planning
- acting as the artist’s agent, subject to the terms of the management agreement.
Remuneration:
- often linked to a percentage of the artist’s income as commission usually around 15-20%
- management agreement may cover other areas of entertainment for remuneration, on the basis
that the manager would be expected to help the artist expand into these areas.
- commission: linked to net or gross income? Depends on bargaining power of parties.
- manager also can sometime reasonably be expected to earn commission from projects/
activities agreed during the term of the agreement but which continue to produce income after
it has been terminated. This can be tightly controlled by negotiation.
- accounting and auditing provisions at least twice a year
- commission upon termination? cut-off date? or can related projects still accrue commission for
manager so long as the project continues?
Expenses:
- should only include items that are directly and solely associated with the the services the
manager provides to the artist
- should not include overheads that would be normally incurred under ‘general expenses’, e.g.
office expenses
- only things like travel for a particular gig, promotional and professional expenses
- artist can seek to limit this individual amount
Agency
- scope of manager’s powers must be clearly defined in the agreement
- artist should retain control over signing of any unusual, major or long-term contracts and limit
the manager’s ability to contract on behalf of the artist
- usually the manager is responsible for signing off on one-time appearances/matters on behalf
of their client
3 of 20
