Thursday, 4 May 2017

The Oxford Comma

Although it is certainly not a point of interest only to intellectual property lawyers, this cautionary tale is as relevant to us as it is to any other species of lawyer. The Oxford (or "serial") comma is often considered to be of interest only to the worst sort of pedant (though "pedant" isn't actually a bad thing to be at all, not on the proper meaning of the word). It can however be crucial to the interpretation of a piece of writing - as a company in Maine found out recently.
Relying on a statute which exempted from an obligation to pay overtime to employees engaged in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution" of certain perishable products, it did not pay overtime to employees engaged solely in distribution. The District Court decided that distribution was a "stand-alone exempt activity", but the Court of Appeals for the First Circuit found that the lack of a serial comma to mark off the last listed activity meant that the provision was ambiguous. The state's default rule of construction required the court to resolve the ambiguity in favour of the beneficiaries of the exemption, namely the drivers. So, for want of an Oxford comma, the drivers got their overtime payments.
It wasn't that the court decided that the absence of the comma was in itself determinative: and I think it would clearly have been wrong had it so decided. To give the words the meaning contended for by the employers, it would have been necessary to obey the rules about parallel construction, inserting a conjunction (in this case "or") between "storing" and "packing", to make clear that "packing for shipment or distribution" was one activity. But how often do you see that rule obeyed?
Thanks to Thomson Reuters Legal Solutions Blog for alerting me to the story.

Monday, 1 May 2017

Eminem in dispute about use of music in NZ party's election campaign

The amount of trouble that using popular music for election campaigns causes seems to be limitless. Not every party can rely on Lord Lloyd Webber to arrange some conveniently out-of-copyright Purcell for the occasion (though the Rondeau from Abdelazar is better known as the theme used by Benjamin Britten for his Young Person's Guide to the Orchestra, which makes it a strange choice for a Conservative Party campaign tune though it's certainly stirring enough). It features at the end of this election broadcast from 1992 - which is worth watching in itself, I think, reminding us of a very different political era.

New Zealand's National Party, for a campaign in 2014, didn't try Lord Lloyd Webber, but instead went for a piece called "Eminem-esque", which it bought from a stock music purveyor. An odd choice of artist, and genre, for a centre-right party to associate with, you might think, and it gets worse because unfortunately for the Nationalist Party it sounds very like Eminem's song "Lose Yourself" - an even more unwelcome association, you'd have thought: alluding to any song with the word "lose" in the title can't be a good idea. As the BBC reports, it has led to a copyright infringement suit. You can hear both pieces played in court here. Neither has the judge dancing in the aisle, and I'm left with the feeling that I would want to punish any political party that inflicted either piece on me. But that's not the point.

There are more and more cases like this coming to the courts - not the English courts, necessarily (I can't think of any cases like this) but there are plenty of others from elsewhere, whether involving politicians or not. There's a recent piece about it on IP Watch which mentions a new "scholarly comic book" (what an interesting concept) by James Boyle and Jennifer Jenkins, about which I am going to post separately.

In the last couple of years there's been Led Zeppelin v Spirit and Marvin Gaye (the estate of) v  Robin Thicke and Pharrell WilliamsAs a recent programme on BBC Radio 4 showed, there is a lot of activity in the area - with a new profession of forensic musicologist emerging as an important part of the picture. The fear of being sued for copyright infringement has a significant chilling effect on creativity, and especially on improvisation. A consequence of the fact that control doesn't lie with the musicians, but with the suits of the record company, and an illustration of how big business isn't content with the limited exclusive rights given by the copyright system, but strives to turn them into a true monopoly.

But back to the story ... The Nationalist Party seems to have taken the view that, if there were a copyright problem, it was the stock library's problem rather than theirs. I doubt New Zealand copyright law is different enough from ours to make that proposition any less risible than it would be if trotted out by an infringer here. Whether "Eminem-esque" does infringe copyright in "Lose Yourself" is another matter, but it does seem like a strong possibility.

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