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intellectual property (IP) | 02 Jul 2019
BY Rachel Sikwane
ENSight

intellectual property (IP)


A bittersweet copyright story

A story that was widely reported on in the United Kingdom (“UK”) gives us an interesting insight into the world of copyright.

A long time ago – some 22 years to be precise – a songwriter by the name of Richard Ashcroft assigned (transferred) the copyright in a hugely successful song called Bitter Sweet Symphony performed by a band called The Verve. If no bells are ringing, I suggest that you Google the song, chances are you will recognise it immediately. The copyright was assigned to two people, Mick Jagger and Keith Richards of the Rolling Stones.

As with many rock music stories, things are a bit fuzzy. However, it seems that Ashcroft was persuaded that he had himself infringed the copyright in the Rolling Stones’ song The Last Time, by incorporating a ten-second orchestral version of that song in Bitter Sweet Symphony. So, Ashcroft assigned his copyright in Bitter Sweet Symphony, seemingly as a form of recompense. The upshot, of course, was that Ashcroft did not profit much from a song that apparently sold more than 1 200 000 copies in the UK alone.

But time was on Ashcroft’s side. Jagger and Richards have finally re-assigned (returned) the copyright in Bitter Sweet Symphony to Ashcroft. This decision was seemingly linked to the fact that Ashcroft was to receive a music Lifetime Achievement Award. At last, it seems, Ashcroft stands to make some money from his magnum opus.

There are lessons to be learned from this story. For example:

  • copyright is a valuable right that can provide an income for many years. It’s important to know that copyright terms are very long – in South Africa, they are 50 years, but in some countries, they are significantly longer (75 years). In the case of some categories of work, the term runs from the date of death of the creator whereas in others, it runs from the date of the work’s release.
  • when it comes to music, there may be different copyrights involved. There is a copyright in the music itself, as a so-called “musical work”. But there is a separate copyright in the actual recording, as a so-called “sound recording. The lyrics might even enjoy protection as a so-called “literary work.
  • like any commercial right, there is much that you can do with copyright – you can sell or otherwise transfer it (assignment), you can rent it (licencing), and you can bargain with it, as the Rolling Stones seem to have done, taking it as a form of compensation.
  • if, as in the present case, a small portion of a song is copied, this may well infringe the copyright in the song if the portion in issue amounts to a substantial part of the song.
  • infringing copyright does not pay. It can cost a lot of money.

On a more general level, it’s important to know that:

  • copyright protects endeavour rather than skill. What this means is that something like a piece of music does not need to have any merit to enjoy copyright. All that is necessary is that the creator must have expended some effort in creating it.
  • copyright comes into existence as soon as the work is made or recorded. In most countries, including South Africa, there is no registration involved.
  • copyright is universal – so, for example, a song written or recorded in the UK has copyright protection in South Africa, and vice versa.

Copyright is a highly specialist field, and expert advice really is necessary. Copyright can be very technical, especially when it comes to music. We saw this in the case of Led Zeppelin’s masterpiece, Stairway to Heaven. The issue, in this case, was whether Led Zeppelin’s 1971 rock classic infringed the copyright in a 1967 song called Spirit by the band Taurus. The evidence showed that it was very likely that Led Zeppelin had known of the song Spirit because they had performed at a concert with Taurus in 1970.

As with Bitter Sweet Symphony, the Stairway to Heaven case revolved around a small portion of the song, namely the famous opening chord sequence. A jury in California decided that the opening sequence of Stairway to Heaven was not similar to a particular sequence in Spirit. Crucially, the jury accepted the argument that the chord progression or sequence in issue was a common one.

But on appeal, a court found that the trial judge had advised the jury badly. In particular, the judge had failed to make it clear that, although copyright law might not protect individual elements such as notes or scales, it can protect combinations or sequences if they are original. The judge had also failed to make it clear that copyright can protect chromatic scales, arpeggios or short sequences of three notes. As we said, highly technical stuff. That case still goes on!

Rachel Sikwane

executive | IP

rsikwane@ENSafrica.com 

+27 83 529 3639