Musician’s copyright claim hits a flat note in IPEC

In this article, Iona Silverman explores the recent Intellectual Property Enterprise Court (IPEC) decision in Lant v Plastic Head Music Distribution Ltd & Anor. She analyses the copyright infringement claim and considers its wider implications for creators and licensors in the music industry.

This decision considers:

• The effectiveness of witnesses memories, particularly where no contemporaneous evidence is available.
• Originality of a copyright work that is derived from an earlier work.
• Distinctions between the Copyright Act 1956 and the Copyright Designs and Patents Act 1988.

Background

Mr Lant, a musician, brought proceedings against Plastic Head Music Distribution Ltd and another defendant (Mr Bray) alleging that they had infringed his copyright in various artistic work. Between 1979 and 1986, Mr Lant and Mr Bray performed together as members of the hard rock band professionally known as ‘Venom’. During that period, Venom performed live and recorded and released music, including in several albums. 

Amanda Michaels, sitting in the IPEC, remarked that many claims between members of bands relate to the authorship of their songs or rights in the band’s name. Unusually, this claim and counterclaim relate only to the subsistence and ownership of the copyright in the artworks and photographs associated with Venom. The dispute arose because Mr Bray licensed the Plastic Head Music Distribution Limited to sell merchandise bearing the copyright works, and the third Defendant, Razmataz.com Limited, was similarly licensed by Mr Lant. Each of them objects to the other’s licensing activities. 

The defendants denied infringement and challenged the claimant’s ownership of the copyright.

Two works of particular relevance were the first and second versions of the VENOM logo:

Key Issues

The court considered:

1. Whether Mr Lant owned the copyright in the artistic works he claimed were infringed.
2. Whether Mr Bray owned copyright in any of the artistic works at issue.
3. Whether the band’s second “Venom” logo was sufficiently original (as compared with the first logo) to be entitled to separate copyright protection (with separate authorship).

Outcome

Mr Lant was found to own copyright in most of the artistic works at issue, however the original logo was found to have been created by Mr Bray. This case is a good reminder that:

Evidence is key: in this instance there was little documentary evidence meaning the court was required to consider recollections of the witnesses dating back 40 years or so. Although the court found that the witnesses were genuinely doing their best to recall matters from their teenage years, and that they were giving what they honestly believed they remembered of those events, it was remarked that it is easy to be mistaken as to what is genuine memory and what is supposition or reconstruction, or possibly, wishful thinking. In this case, witnesses who deviated from their memories over time were held to be less reliable. 

The bar for originality is low: the law was summarised in Lidl Great Britain Ltd v Tesco Stores Ltd [2023] EWHC 873 (Ch), [2023] F.S.R. in relation to an extremely simple design which was the latest iteration of a series of logos. Copyright only protects works which are original in the sense that they are the author’s own creation. In this case, the second Venom logo was found to attract copyright protection despite its similarities to the first logo.

Copyright laws have changed: not many cases consider copyright works created before 1988, but when they do remember that the Copyright Act 1956 does not mirror the copyright laws set out in the Copyright Designs and Patents Act 1988 now in force.

Key Takeaways

• Evidence matters: document creation of artistic works; better yet enter into a contract to clarify ownership and rights to use the works from the outset.
• The bar for originality is low: works that are based on (but different to) earlier works can attract separate copyright protection.
• Plead your case carefully: arguments made in court but not in pleadings will not be considered.