Tuesday 31 May 2016

Who owns a Banksy mural?

The late Sir Hugh Laddie famously became a bit fed up with having to deal with general Chancery Division business, like landlord and tenant matters, when he was the Patents Court judge. But he'd probably have been perfectly happy with a dispute over the ownership of a wall, as in The Creative Foundation v Dreamland Leisure Ltd & Ors [2015] EWHC 2556 (Ch) (11 September 2015).

Separating intellectual property from the concrete items in or on which it is carried or displayed is a big conceptual problem for anyone coming fresh to the topic. A literary work is an abstract matter, separate from but related to the book in which it is printed. A painting likewise: ownership of the canvas does not confer ownership of the copyright, though provided the legal formalities are observed the two can certainly stay in the same ownership. However, this analysis rather assumes that the artist owned the canvas at the time - or at least had the right to apply paint to it. What if she didn't? And what (if it makes any difference) if it wasn't canvas, but a wall?

The growth of street art, and the growth of the respectability of street art too, has resulted in new challenges to the law. The intersection of intellectual property and landlord and tenant law would surely have appealed to Mr Justice Laddie, as it seems to have done to Mr Justice Arnold. The topic is discussed in greater detail in this article on the City University blog, by Enrico Bonadio.

Banksy (because of course it was he) created the mural in suit in Folkestone during the town's triennial arts festival in 2014. The organiser of the festival, The Creative Foundation, acquired the rights to the painting from the landlord, but the tenant removed it, arguing that this was an incident of its obligations to maintain the premises. It further argued that it had become the owner of the painting, but instead of disposing of  it at the local tip as one might expect the repairer of a defaced wall to do, they shipped it to the United States where it was to be auctioned.

Mr Justice Arnold had no difficulty in deciding that the painting had become part of the fabric of the building and therefore was the property of the landlord (who had transferred ownership to the Foundation). On being removed from the building, the claimant argued, the bricks and mortar (and paint) became once again the chattels which they had been before they were made into a wall and incorporated into a piece of real property, and section 2 of the Torts (Interference with Goods) Act 1977 came into play, allowing the court to order delivery up. Without referring expressly to the 1977 Act, the judge did just that.

The judgment should make it more difficult for people to remove murals from property they do not own - although in practical terms it is surely significant that Banksies, one removed from their original sites, seem to cross the Atlantic pretty quickly to be sold by auction beyond the effective reach of the English courts.

As for copyright, Mr Justice Arnold also had no difficulty in recognising that Banksy owned it in the work in question. Given that he is in the habit of painting on other people's canvasses, an activity which in the law's humourless way could be counted as criminal damage (though I doubt it would ever give rise to a complaint), that is a relevant point. Glyn v Weston tells us that copyright will be withheld on public policy grounds from immoral works, and works the creation of which involves the commission of an offence might well be treated the same way - although the new owner of the painting (the owner of the newly-painted wall) will usually give retrospective permission for it. In the US, as Dr Bonadio (who incidentally calls Arnold J "Justice Arnold", thus promoting him to the Supreme Court) notes, graffiti artists would probably be denied copyright protection under the "clean hands" doctrine.

A graffiti-sprayer with dirty hands - there's an interesting idea ...

Glee for the lawyers?

I hesitate to use the word "bullying" in the context of trade mark litigation of doubtful merit, because bullying is not something about which to speak or write lightly. But the expression "trade mark bullying" has entered common parlance, at least among trade mark practitioners, and I suppose that as a lexicographer - a label which I can't really fail to acknowledge - I am committed to accepting the way language is used, although under no obligation not to be critical about it.

Comic Enterprises Ltd v Twentieth Century Fox Film Corporation [2016] EWCA Civ 455 (25 May 2016) is as unedifying a case of a big trade mark owner trying to overcome a small one irrespective of the strengths of their case as one could hope not to see. Reading this morning that the unsuccessful claimants (and unsuccessful respondents) are seeking to take the case to the Supreme Court, which one might imagine would be making lawyers rub their hands with glee, actually adds to the unedifyingness of the whole thing and makes it look more like bullying.

On 16 February the Court of Appeal dismissed Fox's appeal against a decision of Roger Wyand QC (sitting as a deputy judge) that they had infringed the claimant's earlier trade mark, leaving an appeal against the deputy judge's refusal to revoke the claimant's trade mark to be resolved. The Court of Appeal has now dismissed that appeal too. (A passing-off claim was unsuccessful at first instance, and the claimant's cross-appeal on that claim was dismissed.)

Essentially, the claim is about reverse confusion. The claimant opened the first of its (primarily) stand-up comedy clubs in 1994, and filed a trade mark application in 1999. The application was for registration of a series of two device marks, in which the word "Glee" was prominent and the difference lay in the colours. This proved to be the claimant's Achilles heel, leading to the claim that the registration was invalid.

The defendant produced a television show entitled "glee" [sic], perhaps hoping that if they didn't give the title a capital initial they might be able to argue that it wasn't trade mark use. Fat chance of that. It was first broadcast in the UK in December 2009, so the claimant's registration gave them a head start of over a decade. The claimant's registration was wide enough to cover the defendant's activities, or many of them - including merchandising and concerts. It looks like an open-and-shut case, and as far as infringement goes it is hard to see why on earth it should even have got to court let alone the Court of Appeal.

The answer lies in the fact that the likelihood of confusion - necessary, because the trade mark and the defendant's sign are merely similar,  not identical - provided an opportunity to mount a defence. Not a strong one, perhaps, but at least there was a possibility. The odd thing here is that the confusion goes in the opposite direction to what is normal. The senior mark was being confused with the (better-known) junior one. But that didn't matter: there was a likelihood of confusion, there were witnesses to attest to the fact that they had thought the club and the television programme were connected, or came from the same source, and that was all that was needed. Reverse confusion, like reverse passing off (as in Bristol Conservatories)?

Better, though, was the argument that the trade mark was invalid, that it didn't qualify as a series or even that such a series trade mark could not be registered under the terms of the directive. But that's another story which I don't have time to write at the moment. I was pleased to note from the first instance judgment that the extract from the Registry's manual shows as an example a trade mark for which I filed the original application - though it wasn't, and apparently still isn't, a series (the Registry might have adapted it to illustrate the point they wanted to make).

Steal This Riff: How To Fix Copyright Law And Set Musicians Free - MTV

I'm always rather unconvinced by "how to fix copyright" articles, but here is an interesting contribution to the debate about sampling, proposing a compulsory licensing solution. Paradoxically (I think) the new technologies that make this a problem also hold the key to collecting micro-payments in return for use of a copyright work, so rendering collective licensing potentially redundant. And why should any licensing scheme be compulsory? That might have been the best way to strike a balance between owners and users a few years ago, but the technology now puts rights owners in charge of the use of the own rights, and if they don't want to grant licences they shouldn't have to, provided of course that they don't simply discriminate on bad grounds. Usually, I imagine, they would be happy to have the money: that after all is what motivates most people to create copyright works.

Coincidentally, this appeared in my feed reader the same day that the BBC reported (here) that a copyright infringement suit brought in Germany by [a member of] Kraftwerk, over a two-second sample of the drum part of the band's 1977 song Metall auf Metall. I never got Kraftwerk, as it happens, or any other Kraut-rock bands from that era (though I think I might find Tangerine Dream interesting if I had the time to try). But I digress. The German courts have been on Kraftwerk's side, up to and including the Bundesgerichtshof, but now apparently the Federal Constitutional Court - Bundesverfassungsgericht - has come to the conclusion that the decision could affect the defendant's (Moses Pelham's) constitutional rights, making it impossible to create music in a particular style (since when was that a constitutional right?) and has sent to case back to the BGH to reconsider.

If this is what they are complaining about, I can't identify the offending drum track: nothing original to my ears. Sounds quite pleasant - but that isn't always a good thing to say about music.

The drums sound quite original here, and nothing like on Nur Mir. I think it might become a little boring before it finishes, though. Much more interesting to listen to Steve Reich if you want Drumming.

'via Blog this'

Friday 27 May 2016

Council adopts trade secrets directive

The EU Council has adopted the trade secrets directive. The Council's press release is here. The Directive comes into force 20 days after publication in the Official Journal and Member States have two years in which to implement it.

It follows hot on the heels of similar legislation in the US, prompting me to think about a short comparative study of the two - but not today.

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