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Yet another musical hullaballoo has arisen over two songs which sound fairly similar, and who stole what from whom. This time it involves the songs “Sitting on Top of the World” by Delta Goodrem and “Rebellion (Lies)” by Canada’s Arcade Fire.
In an article in The Australian earlier today, Delta denies having ever heard the 2005 song from Arcade Fire, and that when she listened to it, she thought it was a bit of a storm in a teacup.
However, according to the article, Darren Cross, a former member of Australian electro act Gerling, said on his blog the E.L.F. that Arcade Fire should sue.
Our verdict? Sorry Darren (and Arcade Fire), stick to music … music law and copyright are not your forte. We will go so far as to say that while the guitar sounds and beat are pretty similar, that is all that is really very similar about the songs. They are both in 4/4 time signature and about the same pace, and are in the same key and sung in the same language (English) … but that’s it. The chord structures are very different – they only sound similar because they are in the same key – the same key as literally millions of other songs.
Basically, this is one of those times when two songs might sound a bit similar but otherwise have truly no similarities at all which come anywhere near a valid claim for breach of copyright. The melodies are starkly different, and so are the chord structures when you see them.
Rebellion (Lies) involves a repeating chord pattern of B-flat, E-flat, B-Flat and G minor.
Delta’s main chord pattern / hook is B-flat, E-flat, B-flat, E-flat, B-flat, E-flat, G minor, F.
You be the judge – you can review the videos in this article from Sydney Confidential.
Aboriginal communal copyrights over indigenous intellectual property involve rules that have not developed the same way as modern Australian concepts of intellectual property rights, which stemmed from English common law and have been supplemented over time by statutory intervention.
Traditional communal ownership of certain cultural intellectual property such as traditional Aboriginal songs and dreamtime stories is similar in many ways to modern copyright concepts, but one practical difference is that the rights are held by the relevant community generally and cannot be bought and sold like modern copyrights. The communal nature of the ownership also means that when disputes arise regarding whether to license parties outside the community to reproduce the cultural works, the disputes can be quite difficult to resolve.
In an article earlier today, it is reported that a number of elders from the traditional owners of the Anangu Pitjantjatjara Yankunytjatjara lands, backed by cultural organisations including the Australian National University and the National Museum of Australia, are seeking to record what are referred to as two of the Western Desert’s most important creation stories, namely Ngintaka (the giant perentie lizard) and Kunkarangkalpa (the Seven Sisters Dreaming). They are calling this the “Songlines Project”.
“Songlines”, or Dreaming tracks as they are also known, are said to be paths across Australian land or sky which mark the route followed during the Dreaming by certain ‘creator-beings’. These paths are recorded in traditional songs, stories, dance, and painting.
One group most vocal about recording the Songlines, citing the necessity to preserve Aboriginal culture, is the Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council. However, the problem is that many men in the Anangu community do not agree with the Songlines being recorded. Spearheading the protest is Yankunytjatjara traditional owner Yami Lester, backed by Pitjantjatjara elder Mike Williams.
In the article referred to above, Mr Lester says “Traditional Anangu men are inseparable from their law of creation and now believe their very existence is being degraded and passed off as a common art form – a money-spinning curiosity, clearly not understood by those who have casually or hastily condoned this ‘project’ … they should keep their nose out of blackfella things, instead of attempting to remove the sacredness and essence from our culture and fling it before the eyes of the material world … Saying they want to preserve our culture is rubbish … Exposing the most sacred of Aboriginal men’s law to unready women and children, let alone the entire world, will further weaken our culture and humiliate traditional Anangu men.”
However, those supporting the project say that the project was initiated by Anangu elders, is strongly supported, and that there is no intention of recording sacred men’s law – but instead simply to tell the “open story” that has been documented. They say that the dispute is brought about by misunderstanding and misinformation, and that the project was intended to support the transfer of knowledge between generations, while expanding the market for Anangu art, with major exhibitions planned.
Hopefully all concerned will find a way to share the Songlines with the rest of Australia while at the same time preserving the sanctity of secret Anangu men’s business.
Queensland and New South Wales are up in arms over Victoria’s campaign to have each year’s second State of Origin rugby league game played in Melbourne for the next few years, in return for $2.5M per game being paid to the Australian Rugby League Commission.
According to news reports, the Qld Sports Minister has stated that Qld will not pay to keep the game in Queensland, citing the reason that Qld “owns” the game, higher moral ground, etc (although we are sure it doesn’t assist that Qld is broke).
From a practical perspective, there are arguments either way about the benefit of adding Melbourne as a venue for the second game — more funding for the game and accessibility for more Victorians versus the tradition of keeping it in NSW and Qld as the game is always between NSW and Qld.
But what about legally – is State of Origin “owned” by any particular state? Alas, no … it’s not about intellectual property or some sort of incorporeal rights. The ALRC is in control of what games it puts on and it controls State of Origin. Certain contracts and constitution documents give ALRC the decision making role in this regard, so if it wants to accept the money from Victoria to host games there, it can, and it probably will unless it can be established that it will be bad for the game (doubtful) or reduce the level of viewership (also doubtful).
Many lament that it should not all be about money but about tradition and the good of the game. Yes, wouldn’t that be nice?
Our prediction? Welcome to the fold, Victoria …
Commercial Matters by .
Misleading or deceptive conduct is not something that has been freshly made illegal – it has been an offence for many many years to engage in conduct liable to mislead or deceive members of the public and at least since 1974, when it became enshrined as section 52 of the then Trade Practices Act 1974 (and now section 18 of the Australian Consumer Law), it has been the scourge of the dodgy and the boon of the honest seeking justice.
However, despite all of that, still some of the biggest and brightest give it a red hot go to breach it.
Section 18 of the Australian Consumer Law provides that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive“. That’s pretty broad and some breaches of it will be pretty straightforward. Bottom line – explain the whole story and don’t embellish or make stuff up that you ought know isn’t true.
Pretty simple, right? Unfortunately not, for many people in business, even the biggest players.
A Bad Apple
The example today from which our pictorial title takes its inspiration is from none other than technology giant Apple. As reported today, Apple has for some time been marketing iPads in Australia indicating they were 4G-compatible. However, as was well-known to Apple, the iPads are not compatible with 4G in Australia because over here, Telstra and Optus use a bandwith for 4G that is not able to be used for that purpose by the iPad. So, while they can connect to fast speeds, 4G is not an option for iPads in Australia at this stage.
Apple was aware of it, but did nothing about it until the ACCC forced them to do so by threatening Federal Court proceedings. Why did Apple wait until then? Who knows – maybe cost-saving, maybe apathy, maybe something else – but in the meantime they sold a lot of iPads and now hope they won’t be asked by all purchasers for a refund.
Of course, they won’t have to refund everyone – not everyone will have bought the iPads specifically for its falsely reported 4G capabilities and so not everyone will want to give it back – but Apple will likely refund those who say they don’t want it anymore because of non-compatibility with 4G.
Apple is now changing its Australian branding for the iPads to drop the 4G claim, but one wonders whether it would have been a smarter, and less expensive, exercise for Apple to not have made that claim in the first place?
One-Dimensional View of 3-D
Harvey Norman suffered a similar fate in 2010 when it marketed 3D television sets with the promise buyers could watch the 2010 AFL and NRL grand finals in 3D. The problem was, as was known to Harvey Norman, 3D broadcasts of those events were not going to take place in Australia, so you could not watch in 3D here.
The Federal Court in finding against Harvey Norman noted something very important – that fine print is not an antidote for misleading or deceptive conduct. In other words, if your marketing tells porkies, you can’t fix it up with an asterisk and some fine print saying “Well, almost, but what we meant was …“.
Fine print might still be required to explain some things – the fact that there is fine print does not mean that the claims made in bigger print are misleading. The bigger print claims are normally just what the marketing boffins see as the “sexier” points to make, while fine print is reserved for the more mundane, albeit still important, points — often the fine print will be things they’re legally required to say but which don’t help the marketing cause. However, when that morphs into large print for marketing lies and fine print for truth, it becomes misleading or deceptive conduct.
Matter of Degree
It is a matter of degree as to whether a marketing claim or line is “mere puffery” on the one hand, or an actual claim to some factual quality which may not be true.
For example, Red Bull will not be taken down any time soon by the ACCC for claiming that “Red Bull gives you wings” even though when you wake up after drinking it you can’t fly. However, if they start to say that Red Bull cures cancer, they and the ACCC will have an issue.
It is important realistically to assess your marketing campaigns, preferably by having someone independent have a look before you put it out there. Not only can that avoid you unnecessary fines and lost goodwill, but it is just smart business practice.
Trade Practices by .
The 2012 Federal Budget has included some changes to fees payable to IP Australia in respect of patents, trade marks, designs and plan breeder’s rights.
The good news is that for trade marks, the application fees payable when lodging electronically using the supplied picklist of services and goods descriptions remain the same as they were – $120 per class. The fees that have been increased will apply from 1 October 2012. Once of those increases is to trade mark registration fees, which will increase from $250 per class to $300 per class on 1 October 2012. However, it was only a few years ago that the registration fee was already $300 per class (it had been $300 since 1998 but was reduced in December 2006 to $250) so in that sense this is simply a return to 1998 prices.
Click on the links to see the full list of increases for patents, trade marks, designs and plant breeder’s rights.
Victor Willis, the former lead singer of the ’70s disco supergroup The Village People, has successfully reclaimed in Court his copyright in songs he co-wrote for the band, despite having signed away his copyrights over 35 years ago.
As explained in a recent article in The Australian, when the US Congress updated US federal copyright law in 1978, it allowed songwriters to reclaim signed-away copyrights after 35 years. This meant that although very early in Village People history Mr Willis signed away his copyrights to Can’t Stop Productions and Scorpio Music in return for a slice of profits which varies between 12% and 20%, he can now claim ownership of somewhere between 33% and 50% of the copyrights (that part is yet to be decided by the Court), which therefore increases (or, at least, should increase) how much he receives for royalties.
However, this only applies to US copyrights and royalties – Australia does not have any equivalent provision so any of our readers who were part of a successful band co-writing songs in the ’70s and ’80s shouldn’t get too excited just yet.
Yes, you can win the court battle, and you can curb the injustice, but You Can’t Stop the Music … (well, not here in Australia, anyway) …
Once upon a time, if you hated something that happened at work, you would go down to the pub and whine about it to your friends over a drink or two.
Of course, that still happens, but now by the time you arrive at the pub/club, all of your friends on Facebook and followers in the Twittersphere have heard and commented on the matter. Recent newspaper articles regularly tell stories about such things, and those stories often have the same result.
Unsurprisingly, employers often differ from employees as to the rights and wrongs of using social media to air gripes about work, and as to where the lines must be drawn. However, while the law is arguably a little on the grey side as to those “lines”, there are some lessons that have been well learned and which need to be borne in mind.
Irrespective of where you sit on that fence between “tell all the goss’ online to as many as possible” and “keep your dirty laundry to yourself”:
- Employers need to be aware that if you don’t have proper written and communicated internet policies in place, you may be able to do nothing about employees who openly pan you online – if you have rules for employees to follow, make them very clear or risk them not being followed and no consequences to follow either; and
- Employees need to be aware that in certain circumstances, especially if your workplace internet policies say so, you can be fired for your conduct on social media such as Facebook even if it is after hours in your own home (in one example referred to in the above article, an employee was fired for clicking “Like” on a certain Facebook page … we don’t say that was in fairness a great result, but it was the result and so can be a risk for you).
Have you ever noticed how one of your favourite songs plays in the background during a TV show, but when you listen to it a little more closely, it sounds a bit different from the version you have?
Sometimes that will come down to things like EQ, reformatting, broadcasting and your TV – but usually, it’s because it is an entirely different recording.
Why, you ask, would they not just use the original recording? Short answer, it’s cheaper not to use the original and to get a (usually) different singer to re-record the song and pay a (lower) royalty rate to the party holding the publishing rights for the song itself (rather than the party holding the rights to the original recording, for which a higher fee will usually be charged).
A good example of this is referred to in this recent article in The Australian, in which it is reported that the producers of the TV show Mad Men paid $250,000 to use an original Beatles recording in a recent episode. Yes, you read that correctly – $250,000.
So, how come there are so many parties involved? Doesn’t only one person or a band own the rights to the relevant song? Well, no … and there are two reasons for this.
The first reason is that a recorded song involves a multitude of copyrights. The parties who wrote the song may own some or all (or none!) of the copyrights in the song itself – they may have assigned all or part of it away to another party, such as their publishers (or someone else’s publishers / label – it is not always the performing artist who actually wrote the song, of course). Every original song will carry several separate copyrights, such as those in the lyrics, in the music and in the arrangement. When it is recorded, there is also separate copyright in the sound recording(s) made – they are usually owned by the relevant record label but the record label often does not own the copyrights in the song itself (just that master recording).
The second reason there are so many parties involved is because in the music industry there are so many parties to pay, and unfortunately the reality is that on most occasions, most of those other parties get paid more than the performing artist themselves.
To an extent, that issue is “chicken and the egg” stuff – a less cynical view might be that there are so many people to pay because of the multitude of tasks involved (and therefore people required) in publishing a song.
Ahhh the music industry … almost every child gets a prize …
How hard is it to win an appeal to the Federal Court against a decision of the Commissioner for Patents? That depends – did the other side show up?
In the 27 April 2012 decision of Kenny J in Scott v Icon Plastics Pty Ltd [2012] FCA 428, Mr Scott appealed against an earlier decision of the Commissioner, where the Commissioner had decided that Mr Scott was not actually the inventor of the air-duct technology he lodged a patent to protect, but rather that Mr Bull was the inventor (the case was not without a sense of irony) and that Icon Plastics was the party entitled to protect that invention by patent.
In the Federal Court, Mr Scott put on plenty of evidence to support that he was the true inventor and that Mr Bull was not telling the truth. However, on those sorts of appeals, the Federal Court hears the matter afresh (or “de novo“), and because the Court cannot simply rely on the arguments and evidence that were put on the record before the Commissioner, Icon Plastics was required to prove its claim all over again.
Icon Plastics might have done just that … if it had shown up. Icon Plastics and Mr Bull were notably absent from the proceedings, which proceeded without them.
Despite there being no actual evidence, then, on the part of the party seeking to knock over the patent application, the Court was not totally bored, and listened to the evidence from Mr Scott and his relevant witnesses. The Court in its judgment pointed out that its role in this sort of appeal is not to decide whether the patent is valid, but whether it was “clearly invalid” based upon evidence from the opponent (Icon Plastics).
Unsurprisingly, the Court decided that there was no evidence at all before it to establish that the patent was clearly invalid, and so decided in favour of Mr Scott.
However, Mr Scott might well be wise to review things before seeking to sue anyone over this patent as there are clearly some invalidity issues to be considered … that is, if the person being sued actually shows up.
In our previous blog post, we spoke about the © symbol and what it means. However, the above symbol, basically the letter “P” in a circle, also has a special meaning in copyright.
This symbol is for publishers of sound recordings to use to notify the world at large that the publisher owns copyright in the recording and when the recording was first published. Just like using the © symbol, it lets you know that they are claiming that you must not copy the recording without their permission. Also like using the © symbol, it does not mean that they are right about that – they might even be wrong about that (ie. they might not actually hold that copyright or the recording might not have been published when they say) – but it should put you on notice that they are claiming those things so, once again, you would be wise not to treat the recording as though it was in the public domain.
Under the Copyright Act 1968 (Cth), using a notice comprised of that symbol together with a year and the name of someone means that the law will presume (unless the contrary is proven) that the named party is the owner of copyright in the recording and that the recording was first published in the stated year. However, the law will not assume that person is the only copyright owner nor that they were the only maker of the recording.
You definitely should use such a notice in relation to all sound recordings you publish and in which you claim to own copyright. Failing to do that does not mean you lose any copyright you had, but displaying prominent copyright notices takes away the excuse of a would-be copyright infringer that they didn’t know you held copyright in the recording.
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