Advice for Kanye West

Advice for Kanye West

Kanye West is a musician and artist who writes his own songs and music. Therefore, his creations are his original works that need to be protected from being exploited by others. The legal protection for Kanye’s work derives from the fact that this work is his original work, and it consists of material that is copyrightable. This advice note seeks to inform Kanye about the importance of protecting his original work from unauthorised use by the others and also to advice Kanye as to the overview of copyright and trademark law, as it applies to his situation.

At the outset, it is important to note that the sphere of music provides some of the most difficult challenges in copyright law (Iyar, 2014). Kanye West must understand these challenges, as the understanding will equip him to understand the nature and significance of protection. The challenges in the interface of music and copyright arise because music represents a sphere that is virtually boundless, as compared to law, which is purposefully certain and orderly (Iyar, 2014).

One of the biggest challenges in the interface of copyright law and music, is that in cases that come before the court, the court has to assess similarities between older work and newer work, which is alleged to be infringing the copyright of the earlier work (Gordon, 2011). In music, this presents a particular complexity, because there are only twelve notes in music and therefore, music is created out of limited notes (Gordon, 2011). This means that there is always a possibility of overlapping of melody between older and newer songs. For Kanye West, the significance of this understanding is that at times, what may seem as a similarity to Kanye West between his music and the music of another artiste, may not be seen in the same light by the courts.

Another complexity that is seen in the copyright law involving music is that some singers may be ‘inspired’ by other musicians and they may make similar music. This was seen in the recent American case of infringement of copyright belonging to Marvin Gaye by Robin Thicke and Pharell Williams (Pharell Willams et al v Bridgeport Music Inc et al (C.D. Cal. Aug 15, 2013), 2013). Their song ‘Blurred Lines’ was held to be an infringement of ‘Got to give it up’, a song by Marvin Gaye. The case depicts the problem of distinguishing between plagiarism and inspiration. Pharell Williams himself admitted to being a fan of Gaye. Therefore, the complexity of inspired versus plagiarism is also one that is to be considered in devising protective actions for Kanye West. Due to the possibility of overlapping of notes, thereby denoting similarity in work, and inspired work being similar to previous work, courts have evolved jurisprudence that considers the complexities involved in copyright law relating to music.

It is also important for Kanye West to understand the nature and significance of copyright to musical and literary works. Copyright is a legal right granted to the creator of an original work, that entitles him to exclusive rights for the use and distribution of the work. The right by itself is derived from the creation of an original work, therefore, the protection of the copyright comes from the creation of the work, even if the copyright is not registered. In other words, copyright is an unregistered right (Karydi, et al., 2012).

In the UK, copyright protection comes from the Copyrights, Designs, and Patents Act 1988 (CDPA 1988). The specific provisions that are applicable to Kanye’s work are contained in the CDPA 1988, S.1, which provides that Copyright is a “right related to property in original literary, dramatic, musical or artistic works and sound recordings, films, or broadcasts”. In the context of protection of copyright in works involving music, the CDPA 1988 protects a musical work, which is defined in s.3(1) as “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”. This means that lyrics are protected separately as literary work and the musical works mean a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

As discussed above, the work done by Kanye consists of lyrics, music and sound recordings. Therefore, apart from the copyright given for musical works, a separate copyright for literary work will also be involved in Kanye’s case. This is because copyright for written work is distinguishable from musical and dramatic work. This is as per the provision in CDPA 1988, s.178, which provides that written work is “any form of notation or code, by hand or otherwise, and regardless of the method or medium by which it is recorded.” Therefore, Kanye must get separate copyright for the lyrics and music that is written by him, as distinguishable from the copyright for the sound recordings or other recordings made by him.

Irrespective of the work being literary or musical, Kanye West will have to show that the work is original and fixed for him to get a copyright for the work. As per the provisions in CDPA 1988, s.3(2), copyright can subsist in a literary or musical work only if it is recorded, either in writing or otherwise. Originality relates to the skill, judgement and labour of the creator of the work (Walter v. Lane AC 359 (1900), 1900). In other words, Kanye West must show that the musical and literary works are the result of his own labour and skill (Cramp v. Smythson AC 329 (1944)] , 1944). There must be no copying from the work of another person involved in the copyrightable material (University of London Press v University Tutorial Press 2 Ch 601 (1916), 1916).

Under the CDPA 1988, s.16, the creator of an original work has the right to prevent others from using the work in any of the ways that are restricted by the Act. The acts that the owner of the copyright can do with respect to his work, can be permitted by him to be done by others. However, in the absence of any such permission, no one else has the right to do any of the following acts, as per the provisions of the CDPA 1988, s.16 (1) and (2). These acts are: 1) copying of the work, 2) issuance of the copies of the work to the public, 3) renting copies of the works to the public, 4) performing the work in public, 5) communicating the work to the public, and 6) making an adaptation of the work or do any of the above in relation to an adaptation. Therefore, once Kanye West creates an original work, he has the right to prevent others from doing any of these abovementioned restricted acts specified in the Copyright Act. However, this does not prevent him from allowing or permitting others to do any of these acts.

In a case, such as the one presented in Kanye’s music being plagiarised by a new rapper, Aveline, the courts have to apply a number of tests in order to ascertain whether there is a violation of a copyright. Aveline has released a new album with distinct similarities to Kanye’s own forthcoming album. While, Kanye’s album is titled, ‘The Kanye Story: My Brilliant Life’; Aveline’s album is called ‘Fabulous Me’. In such cases, the court will ask the question of whether Aveline had access to Kanye’s work. In case, the similarities are innocent, in the sense, that the alleged infringer had no access to Kanye’s work, then there may not be a case of copyright infringement. The question of access is very complicated considering that in the present digital age, there are multiple access routes. An important aspect of infringement is whether the alleged infringer of the copyright had any access to the material said to be infringed (Weissman, 2010, p. 94).

In a similar case to this one, Bee Gees were sued under copyright law on the ground that their song ‘How Deep is Your Love’ infringed the plaintiff’s song. The court considered that Bee Gees wrote their song in France and the popularity of the plaintiff’s song was limited to Chicago, therefore, there was evidence that the striking similarity between the two songs was proof of access (Selle v Gibbs 741 F.2d 896 (7th Cir. 1984), 1984). Courts also apply the substantial similarity test, where the opinion of the ‘average listener’ is the standard for adjudging whether there is a substantial similarity (Gordon, 2011, p. 36).

In cases where there is a breach of confidence, that is, the copyright material is accessed in an improper and unauthorised manner, the courts assume a copyright violation (Phillips v Mulcaire [2012] UKSC 28, 2012). The distribution rights of Kanye West are protected under CDPA, ss.18 and 20(2)(b), which prohibits the distribution of the work by anyone other than the author. Moreover, s. 20(2)(b) specifically prohibits electronic transmission of the work. If it is shown that Aveline has used confidential information of Kanye’s work without his consent, he will be guilty of infringement of copyright ( Saltman Engineering Co Limited v Campbell Engineering Co Limited [1948] 65 RPC 203, 1948). Here, the test laid down in an earlier decision may provide guidance as to the breach of confidentiality, which provides that breach of confidence is unauthorised use of information with necessary confidential quality (Coco v AN Clark (EngineersLLtd [1969] RPC 41, 1969). There need not be a contract between Kanye and Aveline for breach of confidentiality to arise and it is sufficient that Aveline knew the confidential nature of the leaked material (Attorney-General v Guardian Newspapers Ltd (No 2) (' Spycatcher') HL ([1990] 1 AC 109, 1990).

Aveline has also used a gold and purple colour scheme, which is a very similar typeface, and has the symbol ‘AV’ on the front cover, similar to Kanye’s monogram ‘KW’. This raises the question of trademark infringement and passing off.

The purpose of trademark was explained by the court in a case as guaranteeing the identity of origin or the marked goods to the consumer or another “by enabling him, without any possibility of confusion, to distinguish the goods or services from others which have another origin” (Arsenal Football Club v Reed, [2002] EWHC 2695 (Ch), 2002).

The Trademarks Act 1994 (TMA 1994), s.1(1) also defines a trade mark in a similar manner. The ‘KW’ with the gold and purple scheme used by Kanye is a distinctive mark as it has come to be associated with his work. Therefore, it is a trademark. He should get the trademark registered.

TMA 1994, s.10 provides that a use of an identical sign in relation to identical goods or services is an infringement of the trademark. However, as the symbol ‘AV’ is used on the front cover, there is very little likelihood that a customer would be deceived as to the work being that of Kanye (Morning Star Cooperative Society v. Express Newspapers, (1979) FSR 113, 1979). In an action for passing off there are three characteristics to passing off: damaging the goodwill, misrepresenting someone else’s work as your own, and damage caused to the actual trademark owner (Reckitt & Colman Ltd v Borden Inc [1990] 1 All E.R. 873, 1990). These are not satisfied in the present case.

Kanye is advised that as far copyright in musical and literary words are concerned, he may pray for an injunction from the court, in order to prevent Aveline from selling his albums, which are similar to the album yet to be released by Kanye. The fact that his icloud storage was hacked and early versions of the tracks were streamed online on Tidal, he may be able to show access by Aveline.

Advice for Harold

Harold has invented a new app, which allows people to find new music they might like by advertising suggestions of new tracks similar to those they have already downloaded. However, this new app being innovative, must be protected under the intellectual property law. Unless it is protected, there is a likelihood that a third unauthorised party may use the invention commercially.

Harold may get the app he has invented to be patented, wherein the rights under the patent will be protected under the Patents Act 1977 (PA 1977). Harold can make an application for a patent under S7(1) of the PA 1977. Under the said section, Harold as an inventor of the patent, can apply for the patent. Once given, a patent is effective for a period of 4 years, and is renewable up to a total period of 20 years. During the period of its effectiveness, any other person may not use the invention commercially, else it will be an infringement of the patent.

In order for Harold to successfully apply for the patent under s.1(1), he has to show that the invention is new; that it involves an inventive step; and that it is capable of industrial application. He must also show under s.1(2) and (3) that the invention does not relate to a discovery, scientific theory or mathematical method, or a literary, dramatic, musical or artistic work or any other aesthetic creation.

The app created by Harold is based on some mathematical algorithms, which can predict people’s musical tastes based on technical functions of songs, such as drum beats per minute. This is not a mathematical method as described in s.1

The invention should be novel as under the PA 1977, s.2, which provides that for an invention to be novel, it should not form part of the state of art, that is, something that has not been made available to the public (Dowie-Whybrow, 2013, p. 287).

The application for patent is to be made as under s.14 of the PA 1977. The application is to be made to the comptroller, and Harold will have to make the application in a prescribed format to the comptroller. The application process is stringent and as per s.14(2), it is required that the applicant also give an abstract explaining the technical aspects of the invention (Waelde, et al., 2016, p. 399).

Once the patent has been granted and is effective, the patent owner has exclusive rights and powers with respect to the patented product. It is to be noted by Harold that the patent is effective only with respect to the territory for which it is taken. This is the area of patent monopoly. As such, Harold may apply for a patent within the UK (UK IPO), Europe (EPO); and also international (PCT) (Waelde, et al., 2016, p. 238). As the product invented by Harold is truly of a nature that will be downloadable anywhere in the world, Harold must consider getting an international patent.

The PA 1977, s.3 provides that for an invention to be patentable, it must involve an inventive step of a nature that is not obvious to a person skilled in the art. The legal test derived from this provision is also called as the test of the ‘hypothetical skilled technician’ (Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] , 1985). It is considered by courts that a claim of a patent be decided as if by a skilled person in the art (Technograph v Mills & Rockley [1972] RPC 346, 1972).

A four stage test has been provided in the Windsurfing case, which is also called as the windsurfing test (Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] , 1985). As per the test, the first step is the identification of the patentable claim in the invention. The second step is for the court to don the mantle of a skilled but unimaginative addressee. The third step is the identification of the differentiating features between the ‘known and used’ and the invention. The fourth step is to ascertain whether the differences require any degree of invention (Colston, et al., 2010, p. 187).

In a recent case, the Court of Appeal has held that the hypothetical skilled technician, should be applied first (Pozzoli SPA v. BDMO SA (2007). EWCA Civ 588., 2007). Harold is advised to apply for the patent for his invention.

Bibliography

• Arsenal Football Club v Reed, [2002] EWHC 2695 (Ch) (2002).
• Attorney-General v Guardian Newspapers Ltd (No 2) (' Spycatcher') HL ([1990] 1 AC 109 (1990).
• Coco v AN Clark (Engineers Ltd [1969] RPC 41 (1969).
• Colston, C. et al., 2010. Modern Intellectual Property Law. 3 ed. Oxon: Routledge.
• Cramp v. Smythson AC 329 (1944)] (1944).
• Dowie-Whybrow, M., 2013. Core Statutes on Intellectual Property. 4 ed. Basingstoke: Palgrave Macmillon.
• Karydi, D., Karydis, I. & Deliyannis, I., 2012. Legal issues in using musical content from iTunes and YouTube for music information retrieval. s.l., s.n.
• Iyar, S., 2014. Musical Plagiarism: A True Challenge for the Copyright Law. DePaul J. Art Morning Star Cooperative Society v. Express Newspapers, (1979) FSR 113 (1979).
• Tech. & Intell. Prop. L, Volume 25, p. 1.
• Pharell Willams et al v Bridgeport Music Inc et al (C.D. Cal. Aug 15, 2013) (2013).
• Phillips v Mulcaire [2012] UKSC 28 (2012).
• Pozzoli SPA v. BDMO SA (2007). EWCA Civ 588. (2007).
• Saltman Engineering Co Limited v Campbell Engineering Co Limited [1948] 65 RPC 203 (1948).
• Selle v Gibbs 741 F.2d 896 (7th Cir. 1984) (1984).
• Technograph v Mills & Rockley [1972] RPC 346 (1972).
• University of London Press v University Tutorial Press 2 Ch 601 (1916) (1916).
• Walter v. Lane AC 359 (1900) (1900).
• Weissman, D., 2010. Understanding the Music Business. NY : Routledge.
• Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] (1985).
• Waelde, C., Brown, A., Cornwell, J. & Kheria, S., 2016. Contemporary Intellectual Property: Law and Policy. Oxon: Oxford University Press.