Copyright: a Swift overview of what could happen if you’re found to be a copycat

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Posted in:Corporate and Commercial|November 6, 2015 | Join the mailing list

The term “copyright” is often bandied around when someone feels their idea has been “stolen”. Perhaps the most recent example of this is by Jesse Braham, the American R&B
singer who has reportedly claimed Taylor Swift “stole” the words “haters gonna hate” and “players gonna play” from a song he wrote before Ms Swift’s ‘Shake It Off’, in 2013.

Anyone who thinks that branding (and the intellectual property rights contained therein) is anything less than one of a business’ most important assets,
may wish to re-consider their position when they see that Mr Braham is reportedly claiming around £27m ($42m) for the alleged “theft” of six of his words.

Irrespective of the facts in the potential dispute between
Braham v Swift, from an English law perspective, is it possible to “steal” song lyrics?  

The short answer is no – technically speaking Jesse could not have alleged that Taylor “stole” his lyrics under English law. Instead, in order to be technically
correct, the allegation would need to centre on a number of other specific acts, which notably, the Copyright Designs and Patents Act 1988 (“
has indeed criminalised. Therefore, although not stealing, infringing someone’s copyright within their song lyrics could lend to criminal sanctions.

The CDPA outlines two types of infringement – primary and secondary. It is the second of these types which brings potential criminal sanctions. Typically
the secondary infringing acts tend to be acts that facilitate the distribution and production of an article that is protected by copyright, where the person accused had (or ought to have had) the knowledge that the article in question is an infringing copy.

An example of a secondary infringing act is evidenced in the recent case of
Phonographic Performance Ltd v Fletcher [2015] EWHC 2562 (CH), 22 June 2015. In that case
Mr Fletcher failed to obtain a licence from Phonographic Performance Ltd (“PPL”)
to play music to the public in his nightclub. The licence is supposed to account to PPL’s members for their royalties for playing their music. In failing to obtain a licence and furthermore, in breaching a Court order requesting Mr Fletcher to obtain a licence,
Mr Fletcher was passed a 28 day custodial sentence, suspended for 12 months.

Unlike the criminal sanctions, acts of primary infringement are ones which do not require any knowledge or intention of copying. Therefore, if someone copies
(as well as a number of other acts set out within sections 16(1), (2) CDPA) a “substantial part” of a copyright work, then they are potentially acting in primary infringement of another’s copyright.

The crucial aspect is ascertaining what a “substantial part” is. If Mr Braham’s dispute was heard in an English Court, would 6 words from a whole song amount
to a “substantial part”?

The substantial part test is qualitative and not quantitative. This means that the size or amount of the copying is not a determining factor in helping an
English Court decide whether someone has infringed another’s copyright.

Primary infringement results in civil remedies which do not involve any fines or prison-time for the copycat. Instead, remedies include Court orders for
damages, injunctions (which force people to both do, and stop doing certain acts), search orders, freezing orders (usually used to freeze bank accounts), seizure of copies and forfeiture. These are just as serious as the criminal sanctions. Additionally, as
evidenced in
Absolute Lofts South West London Limited v Artisan Home Improvements Limited and another [2015] EWHC 2608,
the Court has the power granted by section 97(2) of the CPDA to award any additional damages, as justice requires.

Regardless of the hypothetical position under English law in respect of Mr Braham’s claim, only time will tell whether Ms Swift can shake it off, or whether
she will have to write a blank [cheque] (baby), and sign her name…

The information and opinions contained in this blog are not intended to be comprehensive, nor to provide legal advice.  No responsibility for its accuracy or correctness is assumed by berg or any of
its partners or employees.  Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this blog.

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