Even the most rhythmically challenged among us have struggled to resist ‘making shapes’ to Ed Sheeran’s Shape of You at some point since its release in January 2017. Over five years may have passed since the song first hit our airwaves, but those familiar layered beats, and the ‘Oh-I-Oh-I-Oh-I-Oh-I’ hook that has plunged Ed into hot water at the High Court, are still regularly pumped out in shops and spin classes across the kingdom.
News reports of the trial, in which Ed and his collaborators are accused of ‘magpieing’ said hook from a little-known artist, have been almost as omnipresent as the song itself, and have given copyright law its 15 minutes of fame. If the trial has piqued your interest in this particularly ‘shapely’ area of IP law, and you’re wondering what relevance it might have to your business, here are five fun facts:
© Copyright arises automatically in the UK, and it’s free!
Unlike filing for a patent or registering a trade mark, there are no arduous forms to complete or administrative fees to pay. As long as you’ve created something ‘original’ by exercising skill, judgment and effort (i.e. you haven’t just copied from someone else) you’re on the guestlist at Club Copyright. In most cases you don’t even have to demonstrate artistic merit (great news for this year’s Eurovision contestants) and copyright protection often out-lives the creator, which can be a nice little earner for the grandkids.
© Just because you paid for it, doesn’t mean you own it.
Many entrepreneurs are shocked (and slightly queasy) when they learn that, in a commissioner-freelancer scenario, the default position under UK law is that the freelancer is the legal owner of the copyright in the work that they create – even if they’ve been royally rewarded for their services. A formal transfer (in legal terms, an ‘assignment’) of the copyright in the commissioner’s favour needs to take place for them to own what they’ve paid for. This juxtaposes the employer-employee scenario where, subject to agreement to the contrary, the employer owns the copyright in what the employee creates in the course of their employment. Future investors in, or purchasers of, your business will demand to see a clear chain of title to core IP assets, and it’s surprising how often a break in this chain delays or de-rails funding rounds and acquisitions – often because the copyright owner has gone AWOL or, with the sweet smell of money in the air, is holding the business to ransom. If you’ve ever commissioned a third party to create something for your business – from software and logo design to know-how and marketing/website content – this could affect YOU. We’d be delighted to work with you to ensure that all the right IP is in all the right places – just get in touch.
© Copyright law has extraordinary reach – from A(rchitecture) to Z(en diagrams) and everything in between.
Most of us don’t reach for printouts of source code as a relaxing bedtime read, but do you know that computer programs, and the seemingly random collection of words and numbers that form them, are protected by copyright law as ‘literary works’? Patenting software is an uphill struggle (in terms of time, cost and the need to demonstrate a ‘technical contribution’) so copyright protection, which isn’t as powerful but arises automatically and is free, is a real gift to tech entrepreneurs. In contrast, most jurisdictions don’t consider recipes to be ‘literary works’ – at least not the simple written list of ingredients and quantities (glossy photos, aspirational intros and Pinterest-worthy layouts would attract separate protection). The sanctity of the recipe for Coca-Cola and the combination of 11 herbs and spices that coat KFC’s chicken relies on a network of NDAs and a strict policy of only disclosing recipes to personnel on a ‘need to know’ basis (minimising the risk of a leak). As well as literature, copyright also protects music, drama, art (including photographs, building designs and business logos), sound recordings, films, broadcasts and typography. If you’re human, chances are you’re a copyright owner – even if you’ve been oblivious of this until now. Congratulations!
© There can be many copyright works (and owners!) in a single project.
Shimmying back to Ed for a moment, Shape of You is copyright-protected as a literary work (the hotly-contested lyrics), as a musical work (the melody) and as a sound recording. The album cover features the divide symbol on a brush-blue background, which garners protection as an artistic work, and the layout of the album sleeve is likely to be protected as a typographical arrangement. That’s five separate copyright works and counting, made all the more complex by the fact that some of these works will be co-owned by several individuals, e.g. those who collaborated on the music and the lyrics. Is it any wonder that the copyright acknowledgements on the album sleeve are often longer than the lyrics? Computer programs can be equally as fragmented, albeit arguably less glamorous. In the tech sphere, it’s standard practice for multiple collaborators to each take the lead on writing different aspects of the code, which are then combined to form the program (often with a generous sprinkling of ‘open-source software’, where the copyright owner has granted a free licence to the general public). The design of the user-interface for the program may attract separate copyright protection as an artistic work. The more copyright stakeholders there are, the more challenging it’s going to be to gather all of the consents required to exploit the work commercially.
© No copyright in ideas.
‘Lightbulb moments’ are often followed by the exclamation: ‘I’m going to copyright that!’. Unfortunately, copyright doesn’t protect concepts or ideas per se. In most cases the work must be fixed in a tangible form for the copyright magic to happen, so if you’re brimming with ideas always carry a notebook and pen! It’s a myth that you need to add ©, the date and your name/signature to a work for it to be copyright protected (either in manuscript or electronically) – although this can be useful evidence later, if you need to prove that you were the author and your work pre-dates a copycat version. This practice also puts people on notice that you’re aware of your rights and are prepared to enforce them, so it’s a sensible step.
Our specialist IP team is primed to give pragmatic and cost-effective advice on all IP areas, including identifying and protecting your core IP assets. If, like Ed, you’ve been threatened with an IP-related claim, or fear that someone is infringing your own rights, our dispute resolution team has got your back (and we promise not to dance, however catchy the tune).
For any further information or IP advice please contact Hannah Jones.