It is what is called the qualitative versus the quantitative test. Something may be so special or outstanding from a piece of work, that even a small bit of copying could be infringing (“the quality”), and equally something may be infringing simply because it has taken lots of parts or sections in relation to the work as a whole (“the quantity”). Ignore the myths, such as “it’s ok to take 30% of a work”, or “you just need to make 3 changes to a design for it to escape copyright infringement”. You really need to get some legal advice if you think someone has misused your work in the same way.
Music and Copyright: If you make it all the way to the catwalk, you will no doubt wish to add panache or grit to your display with some suitable music. Equally as your business expands you may wish to use music on your website or in marketing or advertising opportunities. Unless you are using original music that you have composed or commissioned (having ensured you’ve assigned the rights to yourself from the composer), the copyright owner’s permission is required if you wish to exploit their work. There are separate copyrights in sound recordings, music and lyrics. So whereas the author of the music and lyrics will generally be the owner of the copyright, the position regarding sound recordings is more complicated, as the rights vest in the person who “makes the necessary arrangement” for the making of that recording. This could be the artist, the individual producer or the record company, depending on the circumstances. In practice, if a record company is involved, it will take steps to ensure that it owns copyright in the sound recording.
The music publishing industry earns its money by exploiting copyright in music and lyrics.
You must therefore be very careful that any music you use, whether in a live show or other medium, is properly authorised and “cleared”. This will often involve contact with Collecting Societies. They collect public performance and mechanical income for songwriters, and grant licences on the copyright owners’ behalf and collect and distribute the resulting royalties.
The two key UK societies in the licensing of rights in music and lyrics are the MCPS (the Mechanical-Copyright Protection Society and the PRS for Music ( formerly The Performing
Right Society), which can both currently be found at
www.prsformusic.com). Using unauthorised music can be a very expensive business – so always think to get some advice before using someone else’s sounds, or before contacting the collecting societies.
TRADE MARKS AND PASSING OFF
Unregistered trade marks often exist in the get-up and names under which goods are sold or services are provided. These generate goodwill which can be protected by way of legal proceedings for “passing off” if unauthorised third parties use the same or similar get-up or names.
Key requirements for a passing off claim to succeed are that there must be goodwill
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THE LAW 24
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