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copyright, Finnegan, Finnegan Henderson Farabow Garrett & Dunner LLP

Why Proving Access Is Key to Copyright Claims

As copyright law protects the expression of ideas, not the ideas themselves, courts across the world must deliberate where to draw the copyright protection line in the continuum of ideas and expression.

So, when copyright infringement cases are heard, arguments play out over whether works are sufficiently original for copyright to exist, whether sufficient convincing evidence of independent creation exists that establishes that any similarities are coincidental, and whether there is evidence that copying has occurred.

This article examines some recent high-profile copyright cases in the US and the UK, and how these arguments were presented, and if they were successful.

Sheeran latest

The price of success and fame includes a lack of privacy, constant judgement by the media, and, if you are Ed Sheeran, being sued for copyright infringement on a regular basis.

In 2016, Sheeran was accused of copying Ed Townsend and Marvin Gaye’s song ‘Let’s Get It On’ in his song ‘Thinking Out Loud’. When the case, which was heard at the US District Court for the Southern District of New York, concluded in May, seven jurors found that Sheeran had independently created his song and had not infringed copyright.

Townsend and Gaye wrote ‘Let’s Get It On’ in 1973, and, under US law, deposited a copy of the sheet music with the US Copyright Office, which was subsequently registered.

In 2014, Sheeran and Amy Wadge co-authored ‘Thinking Out Loud’. It was released to great commercial success and won the Grammy Award for Song of the Year in 2016.

Under US law, to establish a claim of copyright infringement, ‘a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s’.

One US court’s view on the test for ‘substantial similarity’ in music infringement cases is whether a plaintiff can prove that the ‘defendant took from plaintiff’s works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff’.

The plaintiffs in the case claimed that ‘Thinking Out Loud’s’ combined chord progressions and harmonic rhythm was substantially similar to that used in ‘Let’s Get it On’.

At the end of a six-day trial in Manhattan, during which Sheeran performed his song, after deliberating for 2.5 hours, the jury found Sheeran and Wadge had written their song independently and there was no infringement of Townsend’s and Gaye’s classic.

This decision, which allows the particular chord progressions and harmonic rhythms of ‘Let’s Get it On’ to be used by anyone else, was welcomed by the music industry.

In fact, this chord progression had been used at least 29 times in songs before appearing in ‘Let’s Get It On’, and in another 23 songs between then and the creation of ‘Thinking Out Loud’. It is also featured in introductory books on playing the guitar and piano as a popular progression.

If such a chord progression was not freely available to musicians, it would have had a stifling effect on the creative music industry.

Fiery debate

Fay Evans, a self-published children’s book author, sued John Lewis, a well-known department store chain in the UK, for copyright infringement earlier this year in the UK.

In September 2017, Evans published a story and illustrations about a young dragon who accidentally emits fire when he sneezes and struggled to fit into society. She sued John Lewis for copyright infringement over its 2019 Christmas TV advert which featured an excitable young dragon who inadvertently releases fire.

Evans’ claim was brought at the Intellectual Property Enterprise Court, a division of the High Court of Justice.

In the UK, the owner of the copyright in a work has the exclusive right to carry out acts that restricted by the copyright. These include copying the work; issuing copies of the work to the public; performing, showing or playing the work in public; and otherwise communicating the work to the public.

Copyright is infringed when a person, directly or indirectly, carries out, or authorises another to carry out, any act restricted by copyright without a licence from or consent of the copyright owner, in relation to the work as a whole or any substantial part of it.

John Lewis and its creative agency said the advert had been created independently and disclosed a document showing the outline of the concept of dragon. Metadata showed that the outline document had been created on February 24, 2016, which was before Evans had published her book.

The judge, Her Honour Melissa Clarke, held that the question for the court was whether there had been actual copying that required access, not just the possibility of access.

But she also held that access may be evidenced directly or inferred from the possibility of access and other circumstances of a case. She also stated that, where there was only a possibility of access, an inference could not be drawn that the alleged infringer actually did access the original work, and if so there could not be a finding of copying.

Evans relied on a variety of features of her dragon, such as his facial features, his ‘child-size’, his green colour, and having a ribbed front and a series of triangular spikes on his head and back.

While Clarke held that most of the features of Evan’s dragon would be protected by copyright, as they could amount to the expression of the claimant’s own intellectual creation, she held that the features of the John Lewis dragon were not sufficiently similar to raise a presumption of copying.

Further, as Evans sold only 120 copies of her book, Clarke said she was satisfied that neither employees of John Lewis nor its creative agency had accessed Evans’s book prior to creating the Christmas advert. She said Evans’s case on access was so weak it seemed “extremely unlikely that anyone involved in the 2019 advert” had access to the claimant’s book before the launch of the John Lewis advert.

Having reviewed the evidence, Clarke held that on the balance of probabilities, Evans had failed to establish that John Lewis and employees at its creative agency had seen her book until the 2019 advert had launched. She concluded that John Lewis had not infringed Evans’s copyright, and the similarities between the dragons were due to coincidence, rather than copying.

The crux of Clarke’s decision was the fact that there could be no copyright infringement without copying, and that there could be no copying if Evans’ work had not been accessed by John Lewis’s employees.

As Evans had made numerous claims on social media that John Lewis had infringed her copyright, John Lewis made a counterclaim that sought a declaration of non-infringement and a publicity order.

Clarke granted this, and ordered Evans to publish an order on her website for at least six months, providing a link to her judgment.

Supermarket wars

The parties in Lidl v Tesco are giants of the UK’s supermarket sector.

Lidl claimed that Tesco had infringed the copyright of its logos – a yellow circle with a red rim on a square blue background, and the same logo with the text ‘Lidl’ across the yellow circle – with the latter’s ‘Tesco Clubcard’ sign.

The Clubcard sign is a yellow circle on a blue square, with text on the yellow circle.

In contrast to the Evans and John Lewis case, in which only 120 copies of the author’s book had been sold, it was common ground that Tesco was very aware of Lidl’s logo and had access to it.

In April, Mrs Justice Joanna Smith, of the England and Wales High Court, held that Lidl’s logo and the Tesco Clubcard sign were sufficiently close that they are more likely to be the result of copying than mere coincidence.

In light of inconsistent evidence from one of Tesco’s employees in relation to the creation of the Clubcard sign, and a lack of evidence from one of Tesco’s key external agencies, Smith held that Tesco had failed to satisfy the evidential burden that Tesco’s Clubcard sign was an independent creation, and therefore that Tesco had infringed Lidl’s copyright.

After the case was concluded, Tesco said it intended to appeal against Smith’s ruling.

These cases show that, whether a decision is to be reached by judge or jury, evidence (or lack of evidence) of access to the claimant’s copyright-protected work and a credible chronology of independent creation are key factors when a court has to rule whether copyright has been infringed.

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