Field of Media Law

Question:

Discuss about the Law Media Communication for Censorship and Internet.

Media law is such a field where the telecommunications industry, the broadcasting, information technology, censorship, internet, online services and the entertainment industry is regulated through the law. Due to the increasing popularity of different media, this field has gain significance in the previous century and has moved from simply being focused on live performances and print media. Now, the media consists of live actors, printed word and mobile devices, internet, television, movies and radio (Spilsbury, 2013). The biggest areas of concern which relates to the media laws relate to the intellectual property. This is particularly with reference to the patents related to processes or technologies, trademarks related to different brands and the copyright concerns for original works (HG.org LLC, 2017).

Copyright is a particular filed which the people in media have to keep a strict eye on. It is a legal right which is created through the law of the nation where the creator the original work is given the exclusive right for the use and distribution of the particular work (Miller, 2013). The copyright issues were presented in two cases, i.e., in Taylor swift “shake it off” and in Men at Work’s Down Under Kookaburra case. The following parts cover a comparison and contrast of these two cases, particularly with reference to the significance of these cases in terms of their legal consideration to professional practice.

Before a comparison and contrasting can be drawn between the two cases, there is a need to understand the real dispute of this case.

Spicks and Specks is a quiz show which was telecasted on ABC-TV and back in 2008, while it was been carried on, a question was posted regarding which children’s song was covered in the song “Down under” and the answer to this was given as “Kookaburra”. The kookaburra was a song whose rights were held by Larrikin Music; and after the telecast of this program, a number of emails and phone calls were made to Larrikin on the very next day (The Sunday Telegraph, 2009). Subsequently, Larrikin Music made a decision to initiate legal actions against Colin Hay and Ron Strykert, who wrote the song Down Under. It was claimed that certain sections of the flute segment of the song recording were completely based on kookaburra, which had been written by Marion Sinclair back in 1932. Upon the death of Sinclair in 1988, the rights of the song were deemed to have been transferred to Larrikin Music, which was the publisher of the song, on March 21^st, 1990. The rights of this song, in United State, were administered by Music Sales Corporation, located in New York City (Gilligan, 2014).

Intellectual Property and Copyright

Twenty eight years after the song had released, in June 2009 Larrikin Music initiated a case of copyright infringement against the Men At Work and they alleged that the flute riff part of Down Under had been a copy of their song kookaburra (Tehranian, 2011). The Larrikin Music’s counsel and that of their publishing company, i.e., EMI Songs Australia and Sony BMG Music Entertainment made a claim that based on the agreement on which the song had been written, the copyright was held by Girl Guides Association (News, 2011).  Federal Court of Australia’s Justice Peter Jacobson, on July 30^th made a preliminary ruling regarding the fact that Larrikin Music did not have a copyright over the song and stated that the key issue was whether the writers of Down Under had plagiarized the riff, which was set to be determined at a later date. This decision was handed down on February 04^th, 2010 and it was held by Jacobson J that the copyright had been breached in Down Under as there was a substantial part of kookaburra reproduced in it. The decision of damages was also a controversial one and the parties kept on making different claims. A decision was handed down on July 06^th, 2010 where Larrikin Music was set to receive 5% as royalties from period of 2002. Though, an appeal to this amount was rejected by the High Court of Australia in October 2011 (Akbarzadeh and Atacador, 2011)..

The standing of Kookaburra case showed the lack of visible policing with regards to the rights of the song by its composers, in this high profile case, which led the general public to form a view that the song had been one in the public domain. The copyright status revelation of kookaburra, particularly with reference to get the royalties created a huge uproar and a negative response amongst the different section of the public of the nation.

Shake it off was a famous song of Taylor Swift which topped the charts in 2014. Sean Hall and Nathan Butler, the songwriters filed a suit against Taylor Swift and stated that there had been a lyrical similarity in 2017 (Chiu, 2017). They claimed that there had been a close resemblance of Taylor’s song with their song of 2001 “Playas Gon’ Play” which was a hit and which had been performed by 3LW. This claim was targeted towards not only Taylor, but her co-writers Shellback and Max Martin, ATV/ Sony and also against Universal Music Group, where they asked for 20% of the song’s writing credits along with the pertinent royalties (Forbes, 2017).

Down Under Kookaburra Case

Even though there was no similarity in the sounding of the two songs, the suit was raised from the phrase used in the 2001 song and that of Swift, where it was claimed that “Cause the players gonna play, play, play, play, play/And the haters gonna hate, hate, hate, hate, hate” was a copy of “The playas gon’ play/Them haters gonna hate” (Sinha-Roy, 2017). It was also claimed that the overall structure of the chorus was also similar along with the four part lyrical sequence where four kinds of people were swapping out, i.e., callers for heartbreakers and ballers for fakers (Cullins, 2017).

The representatives of Taylor responded to this claim in a “swift” manner and stated that this claim was a ridiculous attempt to grab money. And they stated that the law made it very clear that there had been no valid case here. This was quite true as due to the very same claim by Jesse Braham, Swift won the suit in 2015. In this case, Graham had asked for $42 million and he got nothing as his case had been dismissed on the grounds that the short phrases were not protected under the copyright laws, particularly when they lack originality (Powell, 2015). And so, this 2017 case is also likely to be quashed by the court as nothing more than an attempt to gain benefit from the money earned by Taylor (Forbes, 2017).

The reason I selected these two cases is that copyright claims are a very significant aspect of the media law, particularly with reference to what I am being taught at the present time in this course. I selected these two cases so as to enable the comparison of two such copyright cases, which were apart in time, to analyse the difference and in particular, the growth of copyright related issues in the present time. These two cases teach us about the changes which the copyright cases have seen and the different types of claims which can be upheld with regards to copyright, thus highlighting the key points of claims which can be made for copyright.

The first and foremost point which was similar in the two cases highlighted above was that both cases related to copyright claims and the other common element is that both of these cases were related to written songs. These two cases saw that the previous artists of a song making a claim about the song which came on later on, to have taken a part of their song and used it without the original artist’s permission, thus claiming royalties for this  misuse.

Shake It Off Case

However, the ruling and the decision of these two cases was very different. In the first case, the ruling stated that there had indeed a breach of the copyright laws and this led to the claimant getting 5% royalty; though, the same was lower than what had been asked for. The second case saw the express denial of a case of copyright being present. The reason for denying this case was that the claim was being made on the common phrases and on such words which were not original. This shows that a case of copyright can only be made when the work is original as was present with kookaburra and where it can be clearly shown that the work had been copied. The biggest proof of this infringement of the copyright in the first case was the audience. When they were asked to answer on which song reflected Down Under, they named Kookaburra. This shows that even the audience, as common people, were able to deduce the similarities between the two songs. This widespread perception of the audience was what forced the matter to be initiated in this case, in a court of law. The support of audience was something which clarified a widespread perception of the copyright having being breached in the song Down Under.

However, when the case of Taylor Swift if analysed, it becomes very clear that the law requires a level of similarity and also a level of originality in the work which is being claimed to have been infringed in terms of copyright of such work. To put it more simply, the song shake it off had to be shown by Sean Hall and Nathan Butler that it was acutely similar to their 2001 hit. And as was quoted by the court, a mere pleading for band-aid could not be used to fix a bullet hole. The court had rejected the 2015 by Braham, which was made on similar grounds and even quoted the very lyrics which were claimed upon to state that “Braham can never, ever, ever get his case back in court”. This shows that in order for a case of copyright infringement to be successful in a court of law, there was a need for the claiming party to show clearly that an original work was present firstly and secondly, that the same had been infringed. Merely making a claim on use of common words could not result in the claim of copyright to be upheld. And where an attempt is still made by people to make claim on the common words, the claim would be “shaken off” (Strecker, 2015).

Legal Considerations for Copyright Claims

Each nation has its separate copyright related norms and there is a need to abide by the norms of the nation in which the incident takes place. For instance, in Australia, there is a need to abide by the Copyright Act, 1968 (Cth) which presides over the claims as have been highlighted here (Caenegem, 2010). Even the Australian laws would have resulted in the same verdict as even the laws of the nation require that a copyright infringement can only be claimed for original work (Dwyer, 2012). And so for a claim of shake it off, even in the nation, the two applicants would have to show that there had been a huge commonality and similarity in the two songs to show that the same had been lifted from another. And the decision for Down Under would also have remained same as there was a huge similarity between the tunes of the two songs, particularly the flute riff part, which even the audience had deemed as being similar to the original song, i.e., kookaburra. The two cases also show the difference in the settlement amounts which are claimed upon. In the first cases, a royalty of 20-50% was sought and in the latter case, 20% stakes were claimed of song credit and in addition to these, the royalties were sought out. The growing knowledge of these rights has led to such high claims being made.

These two cases are particularly important with context to our profession and the copyright related issues have to be particularly kept in mind, as under the media law, such issues are very common. Plagiarized work is simply not tolerated and copying the work of another without their explicit permission can result in imposition of penalties, which means lost revenue and also a loss of reputation. This is also important from the perspective of the music industry as such artists not only have to face an unnecessary hassle from the wrong and unsubstantiated claims, but also creates a negative impact over the person who copies the material, as their future prospective a job can be hampered owing to the blot that the particular artist uses plagiarised content. It also means lowered revenues due to the negative perception of the person in context of not being an original creator of the work.

Conclusion

Thus, in the preceding parts, an analysis was conducted where the two cases related to copyright infringement were discussed in detail. The first case, i.e., the Down Under case saw the judge ruling in the favour of Larrikin Music in upholding that this song had verses of flute rift taken from the famous song kookaburra and this case was born from the question put in at a game show. This ultimately led to 5% royalties being awarded to the plaintiff; though a claim for higher royalty was quashed by the court. The other case is still pending in court; though a similar 2015 case saw the damages being denied due to the work not being original. Hence, the two cases present the different scenarios relating to copyright claims, along with showing the manner in which on claim would be upheld, and the other be quashed.

References

Akbarzadeh, A., and Atacador, J. (2011) It’s over: High Court will not hear Kookaburra v Down Under copyright appeal. [Online] Davies Collison Cave. Available from: https://www.davies.com.au/ip-news/its-over-high-court-will-not-hear-kookaburra-v-down-under-copyright-appeal [Accessed on: 09/10/17]

Caenegem, W.V. (2010) Intellectural Property Law in Australia. The Netherlands: Wolters Kluwer Law International.

Chiu, M. (2017) ‘Ridiculous’ Copyright Lawsuit Against Taylor Swift for ‘Shake It Off’ Is ‘Nothing but a Money Grab,’ Says Rep. [Online] People Music. Available from: https://people.com/music/taylor-swift-shake-it-off-ridiculous-copyright-lawsuit-rep-says/ [Accessed on: 09/10/17]

Cullins, A. (2017) Taylor Swift Sued Over “Shake It Off” Lyrics. [Online] Hollywood Reporter. Available from: https://www.hollywoodreporter.com/thr-esq/taylor-swift-sued-shake-it-lyrics-1041121 [Accessed on: 09/10/17]

Dwyer, T. (2012) Legal and Ethical Issues in the Media. New York: Palgrave Macmillan.

Forbes. (2017) Taylor Swift Sued For Lyrics In Mega-Hit ‘Shake It Off’. [Online] Forbes. Available from: https://www.forbes.com/sites/legalentertainment/2017/09/19/taylor-swift-sued-for-lyrics-in-mega-hit-shake-it-off/#6e97e6635201 [Accessed on: 09/10/17]

Gilligan, M. (2014) Sex, Drugs, And Cubicles: What I’ve Learned From The Music Industry. USA: BookBaby.

HG.org LLC. (2017) Media Law. [Online] HG.org LLC. Available from: https://www.hg.org/media.html [Accessed on: 09/10/17]

Miller, P. (2013) Media Law for Producers. 4^th ed. Oxon: Focal Press.

News. (2011) Men At Work loses final Down Under appeal. [Online] ABC News. Available from: https://www.abc.net.au/news/2011-10-07/men-at-work-lose-down-under-appeal/3348084 [Accessed on: 09/10/17]

Powell, E. (2015) Taylor Swift sued for $42 million for allegedly stealing lyrics to 2014 hit Shake It Off. [Online] Evening Standard. Available from: https://www.standard.co.uk/showbiz/celebrity-news/taylor-swift-sued-for-42-million-for-allegedly-stealing-lyrics-to-2014-hit-shake-it-off-a3104636.html [Accessed on: 09/10/17]

Sinha-Roy, P. (2017) Taylor Swift shakes off copyright lawsuit as ‘ridiculous’. [Online] The Sydney Morning Herald. Available from: https://www.smh.com.au/entertainment/music/taylor-swift-shakes-off-copyright-lawsuit-as-ridiculous-20170919-gykvd2.html [Accessed on: 09/10/17]

Spilsbury, S. (2013) Media Law. Sydney: Cavendish Publishing.

Strecker, E. (2015) Taylor Swift’s Own Lyrics Used to Dismiss Copyright Lawsuit: Report. [Online] Billboard. Available from: https://www.billboard.com/articles/news/6762227/taylor-swift-copyright-lawsuit-dismissed-lyrics [Accessed on: 09/10/17]

Tehranian, J. (2011) Infringement Nation: Copyright 2.0 and You. New York: Oxford University Press.

The Sunday Telegraph. (2009) Down Under and Kookaburra in copyright battle. . [Online] News. Available from: https://www.news.com.au/entertainment/music/quiz-show-sparks-aussie-anthems-battle/news-story/10e8f8d0a9a35637b17b437b235c3574 [Accessed on: 09/10/17]