Recent press coverage of the Rolling Stones threatening to sue Donald Trump for using their songs at his rallies and of Linkin Park having their lawyers warn him not to use their song "In the End" in a campaign style video, which was subsequently removed from Twitter, serves as a reminder that works which qualify for copyright protection are not simply free to use without the owner's consent.
Copyright covers a wide range of creative material such as original literary, dramatic, musical and artistic works, as well as sound recordings, films, broadcasts and typographical arrangements of published editions (such as books, newspapers and magazines). Song lyrics fall within the definition of a literary work, as do tables, compilations, computer programs and databases. Photographs qualify for protection as artistic works.
Copyright arises automatically when the material is created and the period over which it lasts is lengthy. It prevents certain use of the material which it protects unless the owner consents. This includes copying and, in the case of a literary, dramatic or musical works, performing or playing the works in public.
Although there are circumstances in which unauthorised use will not infringe the owner's rights, these are limited. The majority of use requires permission. Where this has not been given, the owner has a suite of legal remedies to fall back on.
Recompense based on a reasonable licence fee
When it comes to financial compensation or "damages", an owner who successfully sues for copyright infringement will be entitled to claim a royalty based either on the going rate to license the work or, where there is no such rate, on the amount which constitutes a reasonable licence fee in the eyes of the court. In one leading case, two travel firms posted a publicity clip on their website and a file sharing site for a music themed "Back to the 80s" cruise. The clip featured extracts from two well-known Spandau Ballet songs but no licence was in place to authorise this. Although the infringement only lasted for 5 days, the firms were ordered to pay over £38,000 in notional licence fees to the copyright owners.
In copyright cases, additional damages which have a punitive element can be awarded to the copyright owner if the court considers the infringement to be "flagrant". The courts have ruled that carelessness or recklessness amounting to a "couldn't care less" attitude will constitute flagrant infringement. In the case involving the unauthorised use of the Spandau Ballet songs, this led to the defendants being found liable for a further £25,000 in damages.
Claims for the recovery of unfair profits and other heads of damage
Even if the infringement isn't flagrant, damages beyond the appropriate licence fee can be awarded where a copyright infringer with reasonable grounds to know that their conduct amounts to infringement has benefited from this conduct, for instance, by obtaining unfair profits. These damages can even fall due where an infringer makes no financial profit as such but where the infringement has helped to expand their business. With the courts also able to consider non-economic factors such as "moral prejudice", it is possible for a copyright owner to obtain extra damages simply for any distress suffered by them as a result of the infringement.
A cautionary tale
One cautionary tale is of a company carrying out loft conversions which, together with its director, was held to have made an unfair profit through the unauthorised use on its website of copyright photographs showing another company's work. The court inferred that the photographs had made a contribution to the company's profits by encouraging visitors to its website to pay the company for loft conversions. These profits were characterised as particularly unfair because they had been generated by misrepresentation. Whilst acknowledging that the route to establishing their level was inexact, the court awarded the copyright owner £6,000 in this respect – a sum which was 20 times more than the notional licence fee of £300 which the defendants were also ordered to pay. The court stated that, had it been awarding these extra damages for flagrant infringement as opposed to unfair profits, it would have arrived at the same figure.
This case illustrates that copyright owners really do have the trump hand when it comes to claiming compensation for copyright infringement.