Theft: A History of Music

Thinking about how to engage students coming to intellectual property law for the first time is something that occupies my thoughts quite a lot these days. A copyright comic might be just the answer - and if it deals mostly with the law from that other common law jurisdiction across the Atlantic, that's not necessarily a disadvantage if the purpose of the exercise is to kindle interest rather than teach hard law. And if it has "theft" in the title I will be prepared to suspend my usual reaction to the connection of that concept with intellectual property.

A large part of grabbing a student's attention is finding a route into intellectual property law from somewhere they already know and like. Music provides an excellent entrée into copyright law - probably not Mozart, but possibly some of the more recent and high-profile cases, the two most celebrated of which were US cases (but there are many from the UK too). Music copyright is precisely what James Boyle and Jennifer Jenkins’ new scholarly comic book tells us about. It is (the blurb tells us) 'a celebration of these and other musicians and composers who crossed barriers and built the playlist of extraordinary Western music from ancient Greece to classical to hip-hop. Published by the Duke Center for the Study of the Public Domain, “Theft: A History of Music,” brings these artists’ musical borrowings to the forefront, saying that instead of stifling creativity, such “thefts” were essential to musical cross-fertilization and creation of new genres.'

The blurb continues: 'But the book also comes with a warning: At every point of new musical innovation, there was resistance and efforts to control music, whether it was from philosophers, the church, or politicians.'

You can read the full article here, and listen to James Boyle discuss the comic on NPR's The State of Things. The mere fact that it's the work (partly) of Jim Boyle is enough to sell it to me: he's an excellent writer and lecturer and I have enjoyed his work in the past, although this is the first comic book of his that I have read (the first comic book of any kind that I've read, since I gave up "war bluds" at school). I read it, pretty much in one sitting, and found it stimulating, entertaining and informative. It's going to be an ideal introduction to copyright concepts in courses I teach in the future, and best of all (coming as it does from individuals and an institution committed to the furtherance of the public domain) it's a free download. What  more could you ask?

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.

Men at Work case won't go to appeal

That interesting Australian copyright case involving the song Down Under by Men at Work, which was held to infringe copyright in the well-known, or "iconic" as it was called in the litigation, Kookaburra, has come to a halt with the High Court rejecting EMI's application to appeal. Mallesons have the story on the IP Whiteboard blog, which is always full of good stuff.

I'm not only old enough to recall the song, I am old enough to consider it new, in the sense that it is post-New Wave. And I couldn't remember anything in it that sounded like Kookaburra. Seems I was right, because the court needed expert assistance to find the bits that had been copied: there was no "ready aural perception" of the copied bars but they were there. But that does seem difficult to square with the notion of a musical work, which is intended to be enjoyed by being listened to (a literary work, by contrast, being enjoyed by being read). If you can't hear the similarity, is music copyright really engaged?

Spotify and free access

Interesting piece in the Guardian, particularly topical in light of increasing copyright protection for sound recordings.

Music royalties claim lives on

Wadsworth v Granada International Media Ltd and Granada Ventures Ltd [2011] EWPCC 20 is a judgment handed down on 9 June by HHJ Birss QC in the Patents County Court, involving the music from Space 1999, a TV series from the seventies, produced by Gerry and Sylvia Anderson in which nuclear waste stored on the far side of the moon explodes (on 13 September 1999) and sends the satellite hurtling off into space. What a ridiculous storyline ... Its transmission dates coincide pretty closely with my days as a full-time student, which explain why I never saw it, never even was aware of it until now as far as I can recall. Derek Wadsworth was a jazz musician and composer who wrote the music for some of the second series of Space 1999. He died in 2008 and his children were the claimants in this action.

Copyright in the music for the series was assigned to ATV Music, now part of the Sony empire. Mr Wadsworth was entitled to half the royalties earned by the publisher, which (with DVD releases and so on) should have been a substantial amount, but he felt he was receiving less than he should have had - perhaps a common condition among composers, as it is among authors, but not necessarily one that is without a remedy. He asked the publisher about it and they said they were handing over half of what they received, which meant that perhaps they were not being paid what was due to them. So a claim was issued against the company responsible for exploiting the programmes. The defendants applied to strike it out on the grounds that there was no privity of contract between Mr Wadsworth and them - his contract was with the publisher, which would therefore have been the party to pursue the payments.

In October 2008 the matter came before HH Judge Fysh QC, who made an order for disclosure of the licences entered into by the defendants, and Mr Wadsworth's solicitors raised a number of questions on the basis of this information by letter of 1 December that year. Two days later Mr Wadsworth died, and it was a couple of years before the court substituted his children as claimants. A case that has barely got started after four years is of course anathema to the Patents County Court, and the judge agreed with counsel for the claimants that the court had to grasp the nettle.

Regarding the strike out application, the judge considered there were two possibilities: either Granada had obtained clearance from the publisher before licensing the exploitation of the programmes, in which case there would be a pile of contracts somewhere, or it had failed to do so. The claimants contended that the defendants owed them a duty - referring to their having a beneficial interest in the copyright, which was clearly not the case, although they could be said to have an interest under the copyright - the right to half the royalties. The case was therefore firstly pleaded as a breach of a duty of care - in other words, it was a claim in negligence.

The second claim alleged a fiduciary duty, and the third that under the Contracts (Rights of Third Parties) Act 1999 the claimants could enforce contractual rights against the defendants.


On the basis of the judgment of the House of Lords in White v. Jones [1995] 2 AC 207 the judge rejected the argument that there was a duty of care, absent a special relationship between the parties. As for the contract point, it was not inconceivable that one or more of the pile of contracts (ones entered into since the 1999 Act came into force) could give the claimants the opportunity to take action against Granada, and accordingly the judge made a disclosure order - a Norwich Pharmacal order, designed to require the defendants to assist the claimants (Norwich Pharmacal Company & Ors v Customs And Excise [1973] UKHL 6 (26 June 1973)) - requiring those contracts to be produced. The fiduciary claim he also regarded as pretty unlikely, but not hopeless. So he left in two of the three claims, ordered disclosure, set a date for a case management conference, and urged (gently) the claimants to get their pleadings sorted out with a view to applying at the CMC to add Sony as a party, which he identified as the key to the claim.

There are some interesting points here about how to deal with a failure to pay the right royalties. I wonder why Sony were not added to the proceedings in the first place? Well, it seems they will be - although a lot of costs have presumably been thrown away getting to the present position.

Reading the judgment, I realise how impressed I have been with all the judgments rendered by Judge Birss since his appointment. They are extremely clearly expressed, thoughtful, helpful to the parties (where the parties deserve help) and, well, humane. Not that other judges don't achieve this too, but these PCC judgments really see to me to be exemplary.

Dazed and Confused? Certainly!

Hat tip to Mike Tobin for this: According to Music Week, American folk singer Jake Holmes (it seems one can be excused for not having heard of him) is suing a rather better-known act called Led Zeppelin for copyright infringement. He claims that Jimmy Page took his (Holmes's) song, Dazed and Confused. The allegation has been around for long enough, but only now - and with no prospect of recovering more than three years back-royalties - is he taking action ... Even so, that might be worth a few bob, and going forward there should be a few more in it for him too.

[Whiter] Shades of ...

Postscript:  Mike Tatroe (who must be another Facebook Rhubarb Thrasher) added that one of the commenters on the NY Times version of this article (http://nyti.ms/9Q5vAr) claims to have known Jake Holmes and previously asked him why he'd never sued Page. At the time, Holmes "...said that Page had so reconstructed the song that he'd made it into something altogether different so he never bothered." You be the judge ...