IP Behind the Music

By Alex Deacon-Viney, Trainee Trade Mark Attorney

World Music Day is a free celebration of music around the world on June 21st. Launched in 1982 in France as the Fête de la Musique, it is a totally free celebration of music and usually, musicians are encouraged to pour onto the streets, into parks and anywhere you can think of to make music!

Whether you’re a professional musician, avid amateur or just a die-hard fan, Covid-19’s effects on the music industry and our ability to play, experience and enjoy music, in whatever genre, has been profound. Whilst the additional time has provided an opportunity to pick up that neglected instrument, or discover some great artists, it is a shame that for World Music Day this year, we can’t celebrate how we usually would. With that, I thought I would write about some interesting points of IP in the world of music.

 Music & Copyright

IP protection for music mainly stems from the Copyright, Designs and Patents Act 1988. A ‘Musical Work’ is defined in Section 3(1) as “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”, and a ‘Literary Work’ is “any work… which is written, spoken or sung”. Copyright protection does not exist for these works “unless and until it is recorded, in writing or otherwise”.

In the UK, copyright protection is automatic. You don’t have to register copyright, but it is good practice to use copyright notices, such as the symbol © with your name and the year, for your music, website and social media. Copyright protection is also not indefinite; it expires 70 years after the death of the author, which is why most classical music is available to download and reproduce without paying a licence fee.

Examples of music copyright at work

The dispute between Taylor Swift and the producer Scooter Braun demonstrates just how valuable music copyright is. Braun acquired the rights to Swift’s back catalogue by buying her old label. The ensuing social media storm quickly turned ugly, and currently Swift has not acquired the rights to her music. To the public, this may appear to be a grave injustice. However, the recording contract signed by Swift with the label clearly gave them the controlling stake in anything she produced, in return for investing in and aiding her career. This has allowed them to sell the copyright to whoever they see fit, without consultation. Swift’s plight highlights the importance of taking independent legal advice before signing any agreement regarding your work, as you may be signing away more than you intend to, or find it difficult later on to control how your work is used.

Another example highlights the importance of completing your due diligence when you are using, or taking inspiration from, someone else’s work. The 2015 ruling in Williams, Thicke, & Harris v. Bridgeport Music, Inc. & Gaye, or more commonly known as the ‘Blurred Lines case’ in the US, has ‘blurred the lines’ for many artists unsure what constitutes inspiration, and what is infringement.

Robin Thicke and Pharrell Williams sought a declaration of non-infringement of Gaye’s 1977 song ‘Got to Give It Up’. Gaye’s estate filed a counter claim, and after a drawn-out, revealing case (Robin Thicke admitted his song writing contribution was effectively nil), a California jury found “substantial similarity” between the songs, and damages of $7.4 million were ordered to be paid to Gaye’s estate. Although this took place in the US and may be considered an anomaly in actually reaching judgment (many settle out of court, see Ed Sheeran/Matt Cardle, Queen/Vanilla Ice and John Lennon/Chuck Berry), it is worth considering where your inspiration has come from, and whether your work may be close to the line. Ensure that you are licencing any samples used, and give proper credit to those who involved in writing the piece, to avoid receiving any claims of infringement.

Music & Trade Marks

Lastly, it is common that musicians no longer sell just music, but also sell their brand. Many use their platform not only to endorse and sell other’s products/services, but to launch their own, alongside their music. See Rihanna and FENTY makeup and lingerie lines, Beyoncé and clothing line IVY PARK, Kanye West and YEEZY, and Jay-Z, with his large portfolio of brands worth $1 Billion. It is arguable that none of these artists would have had such success with their ventures outside of music, had their names, and therefore their brand, not been attached. With such a valuable brand, it should be well protected, with a combination of trade mark registrations that include scope for expansion, monitoring applications and the market for unauthorised use, and strict licencing arrangements that ensure the brand isn’t diluted.

Hopefully this has given you a bit of reading material if you are beginning to run low, inspiration to pick that instrument back up or perhaps start a lockdown, socially distanced band! Until the next concert, stay safe, make music, and take a bow for a job well done!