In advising Ala and Chad it will be established whether ‘The Spillers’ or is it Ala and Chad who owns the copyright of the literary, musical and artistic works of the song. Once this has been established it will then be made known if or not Ala and Chad have infringed such copyrights. After this has been determined any defences which defendant may raise will be considered. Accordingly, if this is established it will then be shown whether ‘The Spillers’ can be awarded compensation by way of an injunction or damages or both.
In order to advise Ala and Chad, it is essential that we first establish whether ‘The Spillers’ are the owners of the copyright of the song ‘Mr Brightside’. By doing so, it will then be determined whether they own the copyright of the literary works of the lyrics of the song, the musical works of the music in the song and the artistic works of the cover of their album.
Literary works are defined in section 3 (1) of the Copyright, Design and Patents Act 1988 as “any work, other than a dramatic or music work which is written, spoken or sung and accordingly includes (a) a table or (b) a compilation, (c) a preparatory design material for a computer program, and (d) a database. In the case of University of London Press v University Tutorial Press it was held that “the word original does not mean that the work must be an expression of original or inventive thought, instead the originality that is required is related to the expression of thought.” Therefore, the fact that ‘The Spillers’ wrote the lyrics would appear to come within this category as it’s his expression of thoughts.
Musical works are defined under section 3 (1) as “a work consisting of music exclusive of any words or action intended to be sung, spoken, or performed within the music.” In the case of Hyperion Records Ltd v Sawkins it was held that “the essence of the music is combining sounds for listening to and the sound of music is intended to produce effects of some kind on the listener’s emotions and intellect.” Once again, it does appear that the Music for the song produced by “The Spillers,” comes within this category. Artistic works are defined under s4 (1) as “a graphic work, a photograph, a sculpture or collage, a work of architecture or a work of artistic craftsmanship.” Again, it would appear that the song would come within this category of artistic works.
However, because Ala and Chad used some of the words from the song ‘Mr Brightside’ written by “The Spillers,” may indicate that the work is not original. And even if produce something which is similar to someone else's work, you will still own the copyright in your own work. Thus, it in this sense it would appear that “The Spillers,” does own the copyright to the lyrics and Ala and Chad has infringed their rights.
“The general rule is that the author is the first owner of copyright if the work is a text work, music, a dramatic work or an artistic work.” Therefore, this would mean that “The Spillers,” have ownership of the copyright in relation to the Lyrics for song ‘Mr Brightside’. Under s9(1), authorship is the person who creates the work , it is most likely to be “The Spillers,” However, is was shown in Walter v Lane where a reported who took a shorthand report of a speech was held to have exercised sufficient skill to be treated as author of the resulting report. Therefore, it seems that Ala and Chad could still have ownership of the copyright works even though The Spillers produced such.
It must, therefore, be established whether there has been an infringement of such copyright and whether there are any defences in which can be raised by Ala and Chad if any. Under s16(1) of the Act, the rights of a copyright owner will be infringed if “the work is copied, copies of the work is issued to the public, the work is lent or rented to the public, the work is performed, shown or played in public, the work is communicated to the public and an adaption is made of the work or any of the above is done in relation to an adaption.” In IPC Media Ltd v Highbury-Leisure Publishing Ltd (No 2) it was found that copyright infringement is the infringement of an intangible right to the expression of the idea. The idea is not protected and copying the idea is not an infringement of copyright. Therefore, it will depend on whether the work, which was copied, was merely an idea and not an expression of an idea. Yet, what is clear is that Ala and Chad have copied the work of “The Spillers” and it has been released to the public.
As for the artistic works that is; the copying of the album cover, it could appear to be an infringement. In Designer Guild Ltd v Russell Williams Textiles Ltd, it was held by Lord Millett that “the first step in an action for infringement of artistic copyright is to identify those features of the defendant design which the plaintiff alleges have been copied from the copyright work.” In relation to the album cover, it would appear that the features have been copied as there are elements of ‘The Spillers’ old album cover. In George Jones v Tower Hamlets London Borough Council & Samuel Lewis Housing Association it was shown that a lot will obviously depend upon the extreme nature of the facts of the case . Thus, it could be likely that Ben has infringed the copyright of the artistic works in the album cover if substantial part was copied from ‘The Spillers’ old album cover since on the facts we are told that he only scanned such, thus, may have a wide interpretation to support liability of Ben.
Accordingly, although it appears that the literary, musical and artistic works have been copied, such copying must be substantial and it cannot merely be a slight part that has been copied. The approach was set out in the Designers case by Lord Millett who stated that “once the judge has found that the defendants design incorporates features taken away from the copyright work, the question is whether the work which has been copied is substantial.” The question which must be asked is “what is the work for the purposes of infringement and has the Ben utilized the whole of The Spillers work or substantial part thereof.” It does not appear that a substantial part of the album cover was copied as mere scan of such was copied onto Ala’s album cover, thus, it is less clear whether a substantial part of the literary and music works have been copied as Ben has merely used some of the graphical element of the album yet it will depend entirely upon the facts and circumstances of the case, but most unlikely that there shall be no infringement following the reasoning of Lord Millett.
Overall, it seems as though “The Spillers” do own the copyright of the literary, musical and artistic works of the song and album cover. Nevertheless, the fact that the literary works were partly taken from the song ‘Mr Brightside’, this may not suffice since the work would not be original. However, if it is shown that Ala and Chad changed it so as to make it look original then they would own the copyright. The question is therefore, whether it is merely an idea or an expression of an idea, of which the decision will be up to the courts.
It is mostly likely that it is found that “The Spillers” do own the copyright in their works, it must then be shown whether there has been an infringement by Ala and Chad for copying certain words in the song as well as some melodies and for using their album cover as part of their single called ‘Mrs Sadside.’. It is likely that Ala and Chad have infringed all of the copyright of the musical, literary and artistic works, yet it is unclear as to whether a substantial part has been copied. If more than a substantial part of songs was copied it would be likely that Ala and Chad would be liable for infringement. It will then be determined whether The Spillers shall be entitled to any compensation by way of an injunction or damages by Ala and Chad.