Copyright myths, infringement and the need for professional indemnity cover

Posted on 10th August 2022 by Phil Ainley

In the age of digital media and immediacy it’s important to remain diligent when it comes to what you say and do online and what media you use for your business promotion.

If you copy someone else’s work for your own monetary gain, then you could find yourself in hot water. To caveat this, there are a lot of similar articles online due to competing companies looking to gain in the online search results pages.

There are also many companies who look similar due to purchasing ‘off the shelf’ logos rather than investing in an original design, therefore there’s some ambiguity that shrouds copyright, especially for those who do work not in professional services and those entrepreneurial spirits who are starting out on a new self-employed venture.

In this article we look at some copyright myths, some examples of copyright infringement, and ultimately how professional indemnity insurance can help protect you and your business if you inadvertently crib someone else’s work.

What is copyright?

Copyright gives you exclusive rights over certain uses of that work. The rights fall into two categories: economic rights and moral rights.

Copyright is infringed when someone carries out any act that is restricted by copyright without the copyright owner’s permission, whether that be all, or part of the work. (1)

According to Gov.uk, the author of a copyright work has the exclusive right to authorise or prohibit the following acts:

Economic Rights:

Reproduction
Distribution
Rental and lending
Public performance
Communication to the public
Adaption

Moral Rights:

Right to attribution
The right to object to derogatory treatment of a piece of work
Right to object to false attribution
The right to privacy of photos and films

How long does copyright last?

Copyright in a written, dramatic, musical or artistic work lasts until 70 years after the death of the author.
Film copyright lasts 70 years after the death of the last of the director, screenplay author/s, dialogue composer, and the composer of any music create for the film.
Sound and music recordings copyright typically last 70 years from first publication.
Broadcasts are protected for 50 years
Published editions are protected for 25 years from first publication. (2)

For more information regarding duration of copyright in the UK, please see Government guidance.

Copyright myths

There are a surprising number of copyright myths which you should be aware of. Artists, designers, inventors, IT professionals, and marketers are just some of the professionals who need to be careful not to infringe on someone’s copyright. If in doubt, it could be wise to speak to a solicitor.

If it’s on the internet it’s free to use

This is a common misconception. While work that is on the internet may be accessible to the public, it does not mean that work is in the ‘public domain’. This is where the misunderstanding occurs. Work falls into the ‘public domain’ when copyright expires, which commonly occurs after the author’s/creator’s death.

Copyright protects my ideas

Not quite. Copyright applies to recorded work in a tangible fixed and material form, not to intangibles such as an idea. However, if you are an inventor/creator, you can apply for a patent instead. A good way of looking at this is, copyright will not protect thoughts it can protect the expression of thought. (3)

Without copyright it isn’t protected

“Copyright will apply whether there is a copyright notice or not.” (5)

Posting my work to myself gives me copyright

This is also known as ‘poor man’s copyright’ (6) and may help in some cases, but is not fail-safe. Many people believe this to be a good way of gaining copyright and the point has also been reinforced in movies and TV shows over the years. The key reason behind this point being classed as a myth is that there is no verifiable evidence to say the contents of what has been posted haven’t been swapped.

The UK Copyright Service have a great article on this topic on their website.

I paid someone to create work for me, therefore I own the copyright

Copyright is rarely automatically transferred to the client once the payment for work is transferred to the creator. Copyright can only be transferred by a written agreement that has been signed by the copyright owner/creator. (3)

Copyright is the same around the world

Rarely do laws in one country identically match those of another and copyright law is no different to this. A key difference in copyright in the United States and in the United Kingdom is “fair use”. (3)

Hall Ellis Solicitors posted a great article covering copyright and explain it this way:

Work is owned by a business in the UK.

Someone else recycles that work and uses it in the UK and in the US.

In the UK this would constitute copyright infringement because there is no qualification for a fair use defence.

However, in the US it would qualify because a fair use defence is available. (3)

Whoever states they own a copyright © in a notice is the owner

Not necessarily. It’s common to see the following in the footer of a website…

A copyright notice such as this create the assumption of copyright ownership but is not conclusive and can be disproved with evidence. This also goes for someone who purports to being the original author of an article or original creator of a design, if their claim can be rebutted with evidence. (3)

You can copy or publish someone else’s work if you don’t make any money from it

Err, no. Any copying or publication without the consent of the copyright owner is an infringement, and you could face legal action as a result.

It’s difficult to prove copyright infringement

In a civil case the plaintiff (a person who brings a case against another in a court of law) must convince the court/tribunal their claim is valid and that on balance ‘it’s likely the defendant is guilty’. Whereas in a criminal case the defendant is innocent until ‘proven guilty’.

The plaintiff should be able to show:

Copying or adaptation of their work has occurred.
Evidence to demonstrate they are the original author, such as a registration or publication date that pre-dates the work of the defendant. (5)

I’m innocent because I didn’t know I was infringing on copyright

In the case of infringement of intellectual property rights there is no such thing as ‘innocence defence’. (3)

This is why professional indemnity insurance has been written to protect someone who unintentionally breaches copyright, because the intention of the infringer is not a relevant consideration when determining liability.

…still puzzled by copyright? To find out more about copyright or if you have been charged with copyright infringement, then it is advisable to speak to a copyright lawyer.

Professional indemnity (PI) insurance and copyright infringement claims

PI insurance will respond to cover you if someone claims you have infringed their copyright, whether unintentionally or on purpose. Many online images are protected by copyright of the owner, whether they’re a professional photographer or a stock image library. Using their image without permission can give rise to a PI claim against you. The same applies for written articles, designs and artwork.

How is copyright infringed?

Inadvertently infringing on someone else’s copyright can easily be done by:

Making a copy of someone else’s work.
Issuing copies of someone else’s work to the public
Renting or lending someone else’s work to the public.
Performing, showing or playing someone else’s work in public.
Communicating someone else’s work to the public.
Adapting someone else’s work.
Authorising any of the above acts. (4)

It’s important to be aware of these points as copying someone else’s work without permission or credit can land you in hot water.

Copyright infringement examples

Just to make things even more complicated, copyright infringement and trademark infringement differ. You can find out how trademark and copyright differ here.

We highlight some high-profile copyright infringement cases that made the news to highlight how easy it can be to find yourself in hot water.

Apple vs Microsoft

Two of the biggest and best known companies ever. The battle between the two started with the question ‘who invented the graphical user interface (GUI)?’

Although Microsoft helped to develop Apple, they refused to allow Microsoft to use their software. Microsoft pressed on and added in their own features. Rather than pursue a lawsuit, Apple agreed to license the Mac’s visual displays. However, Windows 2.0 was almost identical, and Apple believed it was a breach of contract as they’d only agreed to allow their software to be used for 1.0 and not for future versions.

Apple filed a lawsuit in 1988. The battle ran for almost 6 years, but the copyright lawsuit was decided in Microsoft’s favour in August 1993. (7)

James Dyson vs Hoover

Dyson has achieved significant success through the creation of a bagless vacuum cleaner which uses two cyclones. One cyclone removes small particles while the other collects larger items. The system has helped to revolutionise the cleaning industry.

It is this is the patented technology that Hoover infringed with their Triple Vortex system.

According to Dyson, nobody in the field had thought to sell a bagless vacuum cleaner before.

However, the managing director of Hoover European Appliances Group claimed the Triple Vortex recirculated dusty air between three cyclones and did not filter it.

A counterclaim that the Dual Cyclone’s technology was nothing that was not generally known within the industry was dismissed by the High Court.

The High Court ruled that Hoover had intentionally copied the technology of Dyson’s Dual Cyclone vacuum cleaner.

Dyson said: “Their claims that the Triple Vortex is different were shown to be completely false. Hoover showed no interest in the technology when we were looking for backers. Then they rubbished it when we brought out the bagless cleaner, insisting that bags are best. Finally, they came out with a blatant copy.”

Ultimately, Dyson failed to stop Hoover using the Vortex trademark on its bagless cleaners. (7)

Vanilla Ice vs David Bowie/Freddie Mercury

In 1991 Vanilla Ice had a massive number 1 hit with ‘Ice Ice Baby’. The issue was that the song sampled, but did not credit, the song ‘Under Pressure’ by David Bowie and Queen. The case was settled outside of court, with an undeclared sum of money being paid and credit to Bowie/Queen being added to the track. Although this case does not involve designs, it does involve someone else’s creative work. (8)

Response Clothing Ltd vs Edinburgh Woollen Mill Ltd

A recent case, in the UK, judged that the Edinburgh Woollen Mill (EWM) had infringed copyright owned by Response Clothing in respect of a fabric design on jacquard fabric.

Response supplied EWM with ladies tops that contained a designed, referred to as a ‘wave arrangement’, between 2009 and 2012. The design was woven into the fabric, rather than being printed on top.

Response wanted to increase the price in 2012, but EWM rejected the increase and sought different suppliers. Visage Limited won the order and supplied the jacquard tops between 2012 and 2015.

In 2015, suppliers were changed again to two overseas companies called Cingo and Bengal Knittex. Cingo’s tops were only sold for one season, bit Bengal Knittex’s are still sold and remain part of EWM’s range.

Response claimed its copyright ownership was in its wave design, either as a graphic work or work of artistic craftsmanship, which meant Visage, Cingo and Bengal Knittex had infringed on its copyright. Response also claimed EWM had infringed its copyright by selling the tops made of the infringing fabrics.

Although the definition of a “graphic work” in the Copyright, Designs and Patents Act 1988 does not include a design made from the threads of a fabric, the judge presiding over the case agreed that Response’s wave design was a work of artistic craftsmanship. (9)

Where do image rights fit in with copyright?

A story emerged in recent press about the use of people’s imagery by the Spanish government in a tourism advertisement, which prompted us to write this article.

As part of a body positivity campaign, the Spanish government issued a poster featuring women of different ages and sizes with the slogan ‘El verano tambien es nuestro’, which literally translated means ‘summer is also ours’.

The sentiment behind the campaign was to show that you don’t have to have a supermodel’s looks and figure to enjoy the beach.

Where the campaign has courted controversy is in the use of women’s photos without their permission as the basis for the illustration. One of the BBC’s articles on the case states, “Copyright laws that apply in the UK and Spain say that a photo, or part of it, can’t be used or copied without the owner’s permission – even if it’s posted on a site like Instagram.” (10)

This is a clear example of how someone who doesn’t know about copyright law can inadvertently find themselves in hot water. The illustrator who was commissioned for the advertisement has issued an apology and agreed to share the money received equally with the people who feature in the poster.

The warning from this is that you need to be very careful what images you use for your marketing, and not assume that because they are published online that they are open for use in commercial work.

Sources:

https://www.bbc.co.uk/news/world-europe-62365796

https://www.caunceohara.co.uk/knowledge-centre/trade-marks-everything-you-need-to-know-from-registration-to-infringement/

https://www.legislation.gov.uk/ukpga/1988/48/contents

Related Articles:

How you can protect your intellectual property and copyright

Trademarks: Everything you need to know from registration to infringement

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