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Six horribly expensive little notes – How to stay clear of copyright infringement

When you create something new, it is actually not new at all. There is very little in the world that has not yet been discovered. What people think of as something “new”, is just a new combination of existing things. Take, for example, the engineering designs shortlisted for the James Dyson Award 2019. The James Dyson Award is an international design award for the next generation of design engineers. Looking at the designs that have been shortlisted for the past couple of years, it is clear that most of them are standing on the shoulders of giants. The designers are taking existing ideas a step or two further to get something new; it’s 1+1+1.5=4, not 3.5.

Rather safe than sorry – patents and copyright

What’s interesting is that even at this early conceptual stage, these inventors are looking for, or have already found, backers and financing to study their idea further or move on to the next stage of the process, manufacturing. And many of them have already taken out patents of their ideas. And so they should; their intellectual property should be protected.

What Intellectual Property?

“Intellectual Property” means all inventions, copyrights, copyrightable works (including literary works and other works of authorship), drawings, designs, discoveries, improvements, industrial designs, trade secrets, trademarks, and other intellectual and proprietary rights, including the right to register and protect any of these.

If these ideas get on the Internet, chances are someone, somewhere, will produce a cheap, poorly functioning imitation.

Considering the threat of copyright infringement both of the work of innovators, and accidentally by innovators, the recent judgement on the copyright infringement case against singer Katy Perry should be food for thought.

The Katy Perry case: Six musical notes that cost $2.78-million

After a long trial and testimony by lawyers, composers, song writers, music experts and Perry herself, the jury found that Perry’s 2013 hit “Dark Horse” infringed on the song “Joyful Noise” by Christian rap artist Marcus Gray, aka Flame. And, hold on to your hats – it’s about six (6!) notes in the whole song, which is going to cost Perry a whopping  $2.78-million in compensation for Gray.

”When you hear the six-note passage at the center of Katy Perry’s “Dark Horse” played alongside the one from the 2008 song “Joyful Noise” by Christian rapper Flame, it’s natural to assume that the melodies are nearly identical. It’s a starkly simple phrase, six descending notes that a marginally talented toddler could bang out on a toy xylophone.

And yet, despite the courtroom arguments of musicologists who cited two songs predating “Joyful Noise” that employed a similar melody; of attorneys who claimed it is so simple as to be uncopyrightable; of experts who said that Perry’s fame contributed as much, if not more, to the song’s success; and not least, the testimony by the “Dark Horse” songwriters that they’d never heard the earlier song; a jury found last week that Perry and her co-writers and producers had infringed upon the copyright of “Joyful Noise,” resulting in a $2.78 million windfall for Flame, also known as Marcus Gray, and his co-writer.” (Jem Aswad, Katy Perry’s ‘Dark Horse’ Case and Its Chilling Effect on Songwriting,, Aug. 6, 2019)

Defence against allegations of copyright infringement

1. “Scenes a faire” and the like

What Perry’s team had to prove was that those few notes were original, sufficiently different from the other version, so that the composition can be called theirs. That is difficult to prove when, like expressions and idioms in writing, scenes a faire (very common or typical scenes in film)and basic engineering concepts, musical notes and passages are basic building blocks that anyone can use and rearrange. The judgment is seen by many industry insiders as a threat to creativity and innovation: “They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” defense attorney for Perry, Christine Lepera, said during closing arguments. (Jem Aswad, Katy Perry’s ‘Dark Horse’ Case and Its Chilling Effect on Songwriting,, Aug. 6, 2019)

2. Extrinsic and intrinsic proof of similarities

According to music attorney Richard Busch, to prove copyright infringement, it’s not so much about expertise in a particular field as about establishing whether there are sufficient similarities between the existing and the new work. If the experts and the general public agree, then you have proof that the later work is an illegal copy, and not a derivative work.

3. Derivative works

In copyright law, something can be considered a derivative work, rather than a copy, if it is an expressive creation that includes major copyright-protected elements of an original, previously created first work (the underlying work), but is separate and independent in form from the first. The transformation, modification or adaptation of the work must be substantial (or have very few left-over similarities), and bear its author’s personality, in order for it to be considered original and thus being itself protected by copyright. The legal systems of most countries protect both original and derivative works.

Let’s say that there are indeed sufficient similarities between the original copyrighted work (in other words, the amount and substantiality of the portion used in relation to the copyrighted work as a whole is high), and the new work cannot be considered derivative. Then the only defence is “fair use”.

4. Fair use

It is not copyright infringement if “fair use” is made of copyrighted materials.

“In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.” (Rich Stim, Attorney at Law, in Copyright & Fair Use, Stanford University Libraries, rtrvd. 2016-01-13)

Fair use in United States and Canadian copyright law include commentary, search engines, criticism, parody, news reporting, research, and scholarship. However,  the term “transformative” is not clearly defined, that there are no hard and fast rules for its application, and that many law suits have arisen because of this. If in doubt, consult a lawyer.

No, this is not the sort of lawyer you should call.

How does copyright affect your business?

Copyright infringement can be expensive to settle and that’s why almost every legal agreement between consulting firms and their clients has a copyright clause in it, something like this – you may recognize the wording:

“In the event any information covered by this agreement includes intellectual property rights, proprietary information, know how, trade secrets, copyrighted information of a third party, or any information or property requiring a license to use, manufacture, sell, reproduce, distribute by any means, perform publicly or display such material, the Contractor shall secure the necessary copyright, license or release to allow the Client (and its assignees and designees) to use, manufacture, sell, reproduce, distribute, perform publicly and display such information.”

“The Contractor shall grant to the Client (and its assignees and designees) a perpetual, irrevocable, non-exclusive, transferable, royalty-free license to use and reproduce such intellectual property and other documentation necessary or useful for the purposes of this Agreement and operation, maintenance, repair, alteration or expansion of the Projects.”

So basically, Intellectual Property is any copyrightable work (inventions, texts, drawings, designs, discoveries, improvements, calculations, data, designs, names, logos, etc.) related to projects. Intellectual property can include trade secrets, that is, any information that gives the owner an economic advantage over its competitors and that the owner takes reasonable steps to keep confidential, as well as copyrights, trademarks and patents.

You and your business own all your inventions, discoveries and copyrighted material made or developed by you and your employees, contractors or sub-consultants. And vice versa, your client owns all their own IP assets, trade secrets and copyrights, including of the work that they pay you to do for them.

How to play it safe

Where does this leave you and your business development plans?

  1. If in doubt, before using or quoting any information about a client’s project, ask them for permission first.
  2. Still in doubt? Ask a lawyer. (Seriously, ask a lawyer.)
  3. If you claim it for  yourself, you’d better make sure it’s yours.
  4. If you use someone else’s information, get their permission first.
  5. If you quote or re-use someone else’s information, give credit where it is due.
  6. If you adapt a design or idea, change most of it.

It makes for marketing products that are a bit boring and full of small print – every photo should be attributed, every part of the scope of work has to be credited to the right party, and joint ventures, sub-contractors and partnerships have to be clearly indicated. You cannot take credit for work that you didn’t do.

Be careful when it comes to the re-use or re-combination of existing ideas, you never know if you could be infringing copyright. And as the Katy Perry case proves, even six small notes can cost a fortune. As I said before, if you have any doubts about what you cannot or cannot use or say in public about projects you have worked on, consult a lawyer!

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