Oister Oi! A small episode of infringement

A few weeks ago this blogger's attention was caught by a piece of Danish litigation before the splendidly-named Maritime and Commercial Court in which a production team and reggae band sued an advertising agency and a mobile broadband provider for copyright infringement involving a very short snippet of work.

The defendants initially asked the claimants to produce both text and music for a commercial. This was done; the defendants approved the material and a deal was struck between them which expired in February 2013. Some time after the expiry of the agreement, the defendants produced a new commercial which, said the claimants, used a three-note music sequence and the words "oister oi" which infringed copyright in the work originally produced under the agreement. The defendants denied any infringement, saying that the text merely consisted of the broadband provider's name, Oister, and the word 'oi' [apparently 'hello' in Portuguese: can someone verify this?], and the music was only three notes taken from a whole piece.

The court ruled that, when assessing whether the fragment "Oister Oi" was protected by copyright, the text and music must be evaluated as a whole and had to have an overall level of originality. In the court's opinion, the choice and combination of words, note sequence and rhythm, considered as a whole, were indeed the expression of an individual creative effort.  Accordingly the fragment as a whole had the character of a copyright-protected work. Since the defendants had used the fragment twice, the court found Dkr 20,000 to be a reasonable remuneration.

While very short works have been found to be subject to copyright protection and the taking of short extracts has been found to be an infringement, the risk factor involved when embarking on such litigation is inevitably greater where an argument of de minimis or insubstantiality is available to the defendant.  One would imagine that this uncertainty would tend to lead to cases being settled more often, but there is no evidence that this is so.

Source: "Short fragments of text and music may be protected by copyright", by Mads Marstrand-Jørgensen (MAQS Law Firm, Copenhagen), written for International Law Office.

Fashion and copyright

Unable to attend (meaning not invited to) Milan Fashion Week, this blogger spoke yesterday at the legal equivalent: the Intellectual Property in the Fashion Industry conference. 

The IP Kat was speed blogging at a rate of knots, so you may already have read his summary of the conference, however below is some more detail on the copyright issues that were discussed.

Copyright doesn't protect fashion

"Copyright doesn't protect fashion" is a statement frequently bandied around, however what is meant is that in the UK at least it is difficult to protect a garment using fashion. Our closed list common law system means that unless a garment can be said to fall into one of the eight protected categories, it cannot be protected. A garment could be said to be an original artistic work: a work of artistic craftsmanship. Case law is not in favour of this argument as a string of cases demonstrate how difficult it is to show that a garment is artistic (see for instance the baby's cape in Merlet v Mothercare, or the sweaters displayed in the V&A in Guild v Eskandar.) The requirement that a work be "artistic" is unusual in the copyright world as it requires a judge to consider the esthetic merit of the work. As Lord Reid said in Hensher v Restawhile, "it depends on whether a substantial section of the public admire the thing for its appearance". The result of this is that it is difficult to show that a garment is a work of artistic craftsmanship, and indeed no-one at the conference could remember a case where any work had been considered to be a work of artistic craftsmanship.

That said, it is possible to protect other works relevant to the fashion industry using copyright. There is far less controversy surroundin the protection of photographs, films, collages, sculptures etc.

The Red Bus Case

Temple Island v New English Teas (the red bus case) was discussed in relation to Kate Spade's alleged copying of Vera Neumann's poppy design. The case demonstrates how difficult it is to draw a line between copying an idea or concept such as a poppy, and copying the expression of that idea, i.e. Vera Neumann's design. Further, the PCC's finding that a person who recreates the subject matter of another person's photograph can infringe copyright in that photo is relevant to the fashion industry as magazines and catalogues often recreate runway or haute couture photographs to showcase high street clothes.

Harmonisation of protected subject matter

A string of recent cases from the CJEU indicate that in the EU a work is protected if it is its "author's own intellectual creation" (see Infopaq, Bezpečnostní softwarová asociace, FAPL and SAS v World Programming Ltd). This does not sit comfortably with the English law notion that a work is only protected if it falls within one of the eight categories set out at s.1 CDPA and it is not clear whether English courts will follow the CJEU's approach in protecting works in which the author's own intellectual creation vests. The notion of what is a protected work is not generally controversial however the EU test could enable protection of items currently not protected under English law, such as garments or perfume.

An allied concept is that of originality, for which the EU test has been applied in the UK by the High Court in NLA v Meltwater. Mrs Justice Proudman found that, when considering originality in relation to whether a substantial part of a work was taken, it was necessary to take European law into account. Answering her own question as to whether the test of originality had been changed by Infopaq she considered that the test had been 'restated but for present purposes not significantly altered by Infopaq'.

All this is indicative that fundamental copyright principles are changing and that we could see a shift towards increased protection for the fashion industry.

 Whether the fashion industry needs or wants increased protection is another question entirely. See here for an analysis of "why knock-offs are good for the fashion industry" and contrast with the fact that the US "Fashion Copyright Bill" has made it throught he Senate Judiciary Committee and is headed for the full Senate.

Five stripes and you're nicked: copyright and Dutch police cars

A distinguished member of the intellctual property community has contacted this weblog with a question relating to Dutch copyright law. She writes:

"This Dutch opinion was brought to my attention but, because it's in Dutch, I am not quite sure what it says. I'm told that the design of stripes on a police car was considered a valid copyright work, which means that it has ramifications that extend far beyond trade mark law, i.e., stopping anyone else from using the same stripes anywhere. Can you explain it to us?"

Can one or more of our Dutch readers be of assistance? 

News in Slovakia: no copyright in newspaper news

"No copyright in journalists'
writings! Read all about it!"

From Zuzana Hecko (Allen & Overy, Bratislava) comes some pretty hot news about the battle in Slovakia over whether articles by journalists are deserving of copyright protection. The latest salvo in the battle, contested by press publishers and their new-found foes the monitoring agencies (think Meltwater), comes with a decision of the Bratislava Regional Court which, says Zuzana, creates quite a dangerous precedent.  She explains:

"Yet another 'word of wisdom' has been delivered by a Slovak Regional Court in the recent Ecopress v Storin decision. This, the first decision in the war between the press publishers and the media monitoring agencies in Slovakia, dealt with the question whether media monitoring agencies need to conclude a licensing agreement with publishers in order to use their works (or extracts from them). 

While in other jurisdictions the debate on this point has somehow matured and it is generally not disputed that newspaper articles are authors' own intellectual creations (which was also clearly confirmed by the Court of Justice of the European Union in Case C-5/08 Infopaq, the Slovak court ruled that newspaper articles constitute "mere information" and therefore are excluded from the scope of the Slovak Copyright Act. Unfortunately, neither Infopaq nor any decisions from other jurisdictions seem to have been pleaded by the publishers. This is quite disappointing since Infopaq expressly states that 

"as regards newspaper articles, their author’s own intellectual creation … is evidenced clearly from the form, the manner in which the subject is presented and the linguistic expression. In the main proceedings, moreover, it is common ground that newspaper articles, as such, are literary works covered by Directive 2001/29/EC". 

The court has provided a long and detailed reasoning of how it came to this conclusion by stating that none of the articles which were submitted as evidence by the publishers is "original enough" and that the articles have the character of "daily reports". Ignoring the wording of the Slovak Copyright Act and Infopaq, the court stated that, apart from the requirements of (1) original and (2) author's own intellectual creation, there is yet another condition which is required for the work to enjoy copyright protection: the work needs to be "unique". The court, clearly being aware of the fact that the addition of such requirement goes beyond the current legislation, stated that the condition of "uniqueness", even if not embedded in the Copyright Act "expressis verbis", is inherent in the purpose of the Slovak Copyright Act. Such argumentation is clearly in conflict with Infopaq, which confirmed that Directive 2001/29/EC also harmonised the originality principle by stating clearly that 

"where provisions of Community law make no express reference to the law of the Member States … they must be normally given an autonomous and uniform interpretation throughout the Community". 

The criterion of uniqueness for a work to enjoy copyright protection is certainly not part of the acquis communautaire. 

The court has effectively concluded that there are no literary works published in the press which would be protected by copyright and that editors are not authors. Accordingly, media monitoring agencies do not require a licence from the authors. While in other jurisdictions licences seem to be required even for end users of the monitoring services (Court of Appeal for England and Wales, NLA and others v Meltwater), the Slovak court says it is permissible to copy someone else's work without obtaining a licence. 

The decision is rather disappointing. If court decisions constituted "works" which could be protected by copyright, this decision would certainly qualify, as it is truly "unique" ..."

Thanks, Zuzana. This is quite an astonishing decision. We shall watch for further developments.