Assert and protect your copyright

A landmark decision by the English Court of Appeal has brought an end to three years of wrangling between the members of famed 1960s group Procol Harum, but also put the issue of copyright back centre stage. Sonia Cameron, a solicitor with Aberdeen lawyer Ledingham Chalmers, looks at the ruling and how businesses can prevent copyright complications from turning them a whiter shade of pale

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THE Procol Harum hit, A Whiter Shade of Pale, is famous for its distinctive organ solo, but the English Court of Appeal has reversed the decision to award 40% of the musical copyright to Matthew Fisher, the man responsible for the solo.

Mr Fisher originally had a 40% interest, with the remaining 60% going to the band’s former lead singer, Gary Brooker, and Onward Music.

The latest decision has, however, confirmed Mr Brooker’s right to assert 100% royalty rights in the song.

Leaving the world of pop music behind, what are the lessons for the business world?

There are no specific formalities in the UK for a work to receive copyright protection, which is probably where the problems start, but the law does give protection to all original works in any form.

The most obvious examples are artwork and musical composition, but it also extends to logos, corporate identities, business reports, even legal opinions – essentially, anything which can be seen or heard.

For a work to be original, the author must have created the work through their own skill, judgment and individual effort, and must not simply be copied from other works. Where several people are involved in creating a work, each author must expend sufficient skill and labour to be classed as an “author”.

There was no doubt in the Procol Harum rulings by both the Court of Appeal and the High Court that Mr Fisher’s contribution to the song entitled him to be a co-author of the song and enjoy the associated copyright.

However, it was Mr Fisher’s “excessive and inexcusable delay” in bringing his claim some 38 years after his contribution to the song that led the Court of Appeal to overturn the High Court’s decision.

The fact that Mr Fisher stood by in silence during the commercial exploitation of the song for nearly four decades led the court to conclude it was inequitable for him to seek any control over the commercial exploitation of the copyright of the work.

The moral of the story is that, as the creator of any original work, you should take early steps to assert and protect your copyright.

A song composed on a lazy Sunday afternoon may not seem destined for the charts, and in the same way, your fledgling company’s logo may seem an unlikely target for copycats. There are, however, some steps which can be taken from the outset.

While using the copyright symbol and the year of creation is not strictly necessary, it does highlight that the author or publisher is asserting copyright and acts as a warning to others.

If you know that someone is copying your original work, you should point this out and, if the breach is causing you loss, consider applying to the court to interdict any further breach. The Fisher case shows that, while his copyright interest was acknowledged, his inaction for all those years prevented him asserting it – the same consequence as if he had never been a co-author in the first place.

On the flip side, businesses should be vigilant against infringing the copyright of others – even inadvertently. Many companies are unaware that even copying the corporate identity of another company for the purpose of preparing a report for said same company is a breach of copyright. The implications can be far-reaching and the safest advice to keep the colour in your cheeks is to seek consent for the form and context in which you plan to use any material that is owned by someone else.