Copyright and Musical Works

29 June 2010

Copyright and Musical Works

Pursuant to section 1(1) of the Copyright Designs and Patents Act 1988 (CDPA) copyright subsists in sound recordings, and in the music and lyrics of a song.

The CDPA provides in section 16(1) that the owner of a work has a number of acts restricted to him or her. These are as follows;

a. Copy the work.

b. Issue copies of the work or lend or rent copies of the work to the public

c. Perform, show or play the work in public

d. Broadcast the work or include it in a cable programme; and:

e. Make an adaptation of the work, and do any of the above in relation to such adaptation.

Where the copying of a musical work is in question a substantial part the work must be shown to have been copied, the question remains whether the alleged infringement has made use of a substantial part of the skill, labour and taste of the original composer. (Francis Day & Hunter Ltd v Bron [1963] Ch.587.)

The issue of substantial part does not depend solely on a note for note comparison but must be determined by the ear as well as by the eye, (D'Almaine v Boosey (1835) 1 Y. & C. Ex. 288 ; Austin v Columbia Gramophone Co Ltd (1917) Mac.C.C. 398; Francis Day & Hunter Ltd v Bron (1963) Ch. 587. For the most uneducated in music can recognise that an altered work of music is, in effect, the same as or is derived from the original work. (D'Almaine v Boosey (1835) 1 Y.& C. Ex. 288 ; Francis Day & Hunter Ltd v Bron (1963) Ch. 587 .)

It is clear that a relatively short part of a work can amount to a substantial part, (Austin v Columbia Gramophone Co Ltd (1917) Mac.C.C. 398 ; G. Ricordi & Co., etc. Ltd v Clayton and Waller Ltd (1928) Mac.C.C. 154 (eight bars sufficient, although not in fact copied); Hawkes & Son (London) Ltd v Paramount Film Service Ltd (1934) Ch. 593 (28 bars of Colonel Bogey copied, amounting to just under a minute's worth of composition lasting about four minutes); Francis Day & Hunter Ltd v Bron (1963) Ch. 587 .) particularly if what has been taken is the vital or essential part of the work, (Francis Day & Hunter Ltd v Bron (1963) Ch. 587 .).

Particularly in the field of popular music, the vital or essential part of the work may be a short refrain or hook line. The piece taken is often a distinctive part of the original work and thus immediately recognisable. For example EMI Music Publishing Ltd v Papathanasiou (1993) E.M.L.R. 306 , it is suggested that it will often be appropriate in these cases to apply the rule of thumb that what is worth copying is worth protecting.

Lawdit Solicitors info@lawdit.co.uk