However, several recent international court decisions indicate that linking to certain content online may actually infringe copyright laws.

So how are you potentially exposing your startup to legal risk online?

Balancing access to creative works vs intellectual property rights of creators

Ongoing public policy debate attempts to balance the need to provide community access to creative material and artistic works while also protecting the intellectual property rights of content creators.

One of the primary objectives of copyright law is to incentivise the creation and dissemination of knowledge and creative works by providing a creator with exclusive rights in their work. Due to hyper-interconnectivity and the widespread dissemination of content online, the internet presents a big challenge to content creators when it comes to protecting their creative works and intellectual property rights online.

A recent decision of the Court of Justice of the European Union, however, has the potential to change underlying assumptions about the way information is shared by websites through hyperlinks.

The missing, and possibly infringing, link

In GS Media BV v Sanoma Media, the Court of Justice of the European Union considered whether a publication that linked to private images of a female model through File Factory and ImageShack constituted a copyright infringement.

While visitors to GS Media’s website could access the images by clicking on a hyperlink in its article, the photos were also freely and publicly available online. Internet users were able to download the photos by visiting ImageShack directly.

Sanoma operated an ‘adult entertainment’ business that owned the rights to the images. Sanoma had requested that GS Media stop linking its users to the images, however, GS Media repeatedly ignored these requests. The court ruled that GS Media was in breach of Sanoma’s copyright since
GS Media had profited from inserting the hyperlink to the images on its own website. The issue was that GS Media had made these pictures publicly available through a communication to the public and had profited from that link, while Sanoma had not authorised publication of the images.

The court found that GS Media had knowingly provided a gateway for internet users to acquire files that they could otherwise access free of charge with no barriers.

Elsewhere, in the factually similar United States case of Intellectual Reserve v Utah Lighthouse Ministry, linking and contributory infringement of copyright were at issue. In that case, one party had linked internet users to material that the other party did not wish to be viewed. The court found that there had been a copyright infringement.

Linking this to an Australian context

In 2006, the Federal Court ruled on the interaction between hyperlinks and copyright in the case ‘MP3s4FREE.’ The website’s content almost exclusively provided visitors with links to external websites that stored music files.

Users were able to scroll through the MP3s4FREE website, select and download music for free in spite of protests from record companies and copyright holders. Mr Cooper, the owner of MP3s4FREE, was found to have infringed the Copyright Act 1968 (Cth), as he had considerable power to prevent the download and copy of copyrighted sound recordings as well as the communication of this copyrighted material to the public. While the Federal Court reached a similar conclusion to international decisions, judicial reasoning, in this case, focused largely on Mr Cooper’s ability to prevent the copyright infringement.

You are the weakest link, goodbye

While this area of copyright law has not been thoroughly tested in court in Australia, there are other aspects to hyperlinking that may infringe Australian copyright.

Hyperlinks that contain logos or symbols of the linked website that are sufficiently substantial parts of a copyrighted document may, for example, infringe copyright legislation.

The most obvious example is linking to copyrighted music or a video where the hyperlink contains a ‘preview’ of the audio or video file. Similarly, there may be ramifications for infringing trademark law with this practice.

O, link twice

The above cases are just a few recent examples of the courts wading further into the murky waters of the internet.

If you own a website, whether privately or for your startup, hyperlinking to illegal and copyright-infringing content is a risky practice. Courts around the world are ready to attribute liability to linking websites, even if you are not actually hosting the copyright-infringing content. Merely acting as an online gateway that refers your site visitors to copyright protected material can be sufficient so be cautious when it comes to inserting external links to your pages.

The main point to take away from the cases is that even though judicial reasoning across various jurisdictions has certainly varied, courts are attributing a significant amount of responsibility to websites that provide a gateway to copyright-infringing content.

So, before you create links to all and sundry on your website, think twice and ensure that you connect your customers or visitors to authorised content in an authorised way, or you may be found to have a rather heavy linking problem.

What do you think about copyright infringement and hyperlinking? Let us know in the comments!

The rebel on the right passes a green post-it note mid-playback

But not today.

Video of some of New Zealand’s top legal minds getting on with business as Eminem’s ‘Lose Yourself’ blares around an increasingly awkward courtroom has clocked over 94,000 views on Youtube this week alone.

The magic moment was captured on film during initial proceedings in New Zealand’s high court in Wellington.

The 2002 track blasted through tinny court speakers as part of a copyright infringement case to demonstrate similarities between Eminem’s ‘Lose Yourself’ and a song used by the New Zealand National Party called ‘Eminem Esque’ as part of a 2014 political campaign.

Listen to the National Party advertising campaign here:

Eminem’s publishing company, Eight Mile Style, are seeking a cash settlement and an acknowledgement by the court that the National Party breached copyright law.

Watch the full courtroom saga unfold below:

One YouTube user commented: “At 00:50 the blonde started to feel it but then she snapped back to reality…”

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In the latest music industry lawsuit to hit headlines, Bruno Mars and Mark Ronson are being sued for copyright infringement by 80s electro-funk band Collage, according to TMZ.

Collage claims that the hit track “Uptown Funk” released by Bruno Mars and Mark Ronson in 2014 is a thinly veiled replica of Collage’s 1983 hit “Young Girls” and that the duo reproduced the song’s rhythm, harmony, melody and structure.

It’s not the first time Ronson and Mars have faced legal action over “Uptown Funk”. Earlier this year, The Sequence argued that their 1979 song, “Funk You Up” had been copied, but did not pursue legal action. Last year, writers from The Gap Band successfully joined the list of songwriting credits on “Uptown Funk” for its similarities to their 1979 hit “Oops Upside Your Head.”

According to the complaint (via Pitchfork)

Upon information and belief, many of the main instrumental attributes and themes of “Uptown Funk” are deliberately and clearly copied from “Young Girls,” including, but not limited to, the distinct funky specifically noted and timed consistent guitar riffs present throughout the compositions, virtually if not identical bass notes and sequence, rhythm, structure, crescendo of horns and synthesizers rendering the compositions almost indistinguishable if played over each other and strikingly similar if played in consecutively.

Mars and Ronson have previously listed early 1980s Minneapolis electro-funk soul music as among key influences that inspired the song “Uptown Funk.”

Collage are seeking damages and profits.

Listen to side-by-side comparisons of the two songs below:

Too close to call? You be the judge.

h/t Pitchfork.

Further Information for Musicians

To find out more about your options in Australia where another musician infringes your copyright:

• Legal Rights Where Your Song Is Used Without Permission

We are lucky to live in a country where copyright protection is automatically afforded to creative works, a saving grace that makes Australia’s copyright law imperfections almost palatable.

For musicians, the stakes can be high when it comes to copyright infringement. Contrary to what many Australians may think, there is no such thing as the innocent use of a song, nor is it a ‘victimless crime.’ Most artists derive much of their annual income from royalties, so when an individual or corporation uses a song without permission, without a music licence or without paying royalties, it deprives that artist of a reliable source of revenue.

For Australian musicians, if someone uses your song without your permission it is not only an infringement of your moral rights as a creator of that work but also your economic rights.

So, what are your legal options if you discover someone using your song without your knowledge or permission?

Copyright And The Music Industry

In any situation where your music is broadcast, performed or reproduced, you have a right to royalties.

Copyright protection is automatic in Australia as soon as your original song has been written or recorded.

There are three main situations where copyright infringement of your music can occur.

1. Where a song is used by another person, or corporation, without your permission and without paying a music licence.

As recently as last year, NSW Premier Mike Baird unwelcomely discovered that even politicians are not impervious to making copyright infringements.

Baird found himself in hot water over the unauthorised use of R.E.M’s song ‘Everybody Hurts’ in a YouTube take-off of Jimmy Kimmel’s Mean Tweets series. Baird made use of the track without seeking permission or paying a music licence. YouTube removed the clip after Warner Chappell, the band’s publisher, made a copyright claim overnight.

2. Where another musician uses a substantial part of your song without your knowledge or permission and without paying for a music licence.

For example, by using a substantially similar melody, key, beat, harmony or song structure.

In 2010, Men at Work songwriters Colin Hay and Ron Strykert were involved in a high-profile, expensive and drawn out case over the similarities between their famous song ‘Land Down Under’ and the flute line in the children’s song ‘Kookaburra Sits in the Old Gum Tree.’ The Federal Court’s decision in favour of Larrikin Music (the copyright owners of ‘Kookaburra’) reinforced that musicians can be liable for plagiarising a substantial part of another musician’s work without approval.

3. Where another musician samples part of your song without your permission and without paying a music licence.

Vanilla Ice became the centre of a copyright infringement claim for sampling Queen & David Bowie’s ‘Under Pressure’ in his hit song ‘Ice Ice Baby’ without consent and without a music licence.

The case was settled out of court as it was clear that Vanilla Ice had merely altered the rhythm of the baseline in an effort to avoid giving credit, paying royalties, seeking permission and a music licence.

A Run-Down Of Your Rights

As a musician, you have three main rights:

1. Reproduction

This allows you to reproduce the music you have created in any format.

2. Performance and communication

This right is exercised whenever your music is broadcast on TV or radio, when you perform a song live or distribute your music on the internet.

3. Adaptation

This protects your status as the sole person who can create derivative works, such as music sampling, unless another person has your permission or a licence to do so.

As a creator of music, you not only possess copyright ownership of the music itself but also in the lyrics and any sound recording of your music.

You also own moral rights to your music, including the right to have your work attributed to you by name, the right to stop anyone else attributing your work to them and the right to protect your music from being used in a way that hurts or damages your reputation.

As An Artist, What Does This Mean For You?

If you discover that someone is using your musical work without your permission, you have the right to seek recompense.

Here’s what you can do to stick it to the infringer:

• Firstly, identify who used your song without your permission.

If it is a small team of indie filmmakers or school students making a project for their media class, it may be wise to let it go and take a ‘give-a-little get-a-little’ approach.

On the other hand, if it is a large corporation or mainstream media outlet who is profiting from your blood, sweat, and tears without a licence and without paying you the royalties to which you are entitled, it may be worthwhile taking things further and seek a legal remedy.

You may wish to seek an injunction, which prevents any further unauthorised use of your music, or damages as compensation for the loss you have suffered as a result of the infringement. In either of these scenarios, you will need to pursue legal advice from a lawyer who specialises in entertainment or copyright law.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered.

• Secondly, ascertain how much of your song has been used.

Copyright is infringed only where a substantial part of your copyrighted music is used without your permission, and where this infringement is not covered by any of the fair dealing exceptions.

The Copyright Act balances your rights as the copyright owner with the general public allowing the general public to use a substantial part of copyright material without first seeking your approval. This only applies for certain approved purposes called ‘fair dealing’ defences.

This means that if someone uses your music for any of the below purposes, then they have a defence to your copyright claim:

• research or study
• criticism or review
• reporting news
• giving professional legal advice; and
• parody or satire

If the copyright infringement does not fall within any of the above purposes, it is important to contact the person whom you believe has infringed your copyright as soon as possible after you become aware of the infringement.

• Thirdly, you may wish to send an initial letter of demand.

Your letter should make that person aware that you own exclusive rights to your music, that they have infringed your rights, and how you would like the situation resolved. You should also include a date that you would like to receive a response by, and that you have the right to commence legal proceedings if an adequate response is not received within that timeframe.

Before sending your letter, it is not only important that you consult a legal professional, but also that you consider the outcome you would like to achieve.

For example, would you like the person who has infringed your copyright to:

Simply stop using your music? This is a simple request if your music is being used on a website, for example, as it can be removed quickly.

Continue using your music, but to pay a licence fee?

Pay compensation to you for the loss you have incurred as a result of the unauthorised use of your music?

The Arts Law Centre of Australia has a downloadable template of a letter of demand.

Groundless Threats

Before sending a letter of demand, or making any claims that someone has infringed your copyright, it is critical that you seek legal advice.

If you send a threatening letter and the person has not actually infringed your copyright, this can be considered a groundless threat. This means that the person you have accused of infringing your copyright can turn around and sue you for making an unsubstantiated threat of legal action.

What Can I Do To Protect My Music In The Future?

As a first step, you can set up a Google Alert to receive daily inbox alerts whenever your music is being mentioned or used on the internet. This will help you to keep track of who is using your music, when it is happening and where it is happening without your consent.

To protect economic rights to your music, you can register with a collecting society.

These bodies oversee payment of royalties, look after your copyright and grant permission for others to use your songs (either by performing them or recording them) if they pay a fee.

Australia has a few main collecting societies:

• Australasian Performing Rights Association (APRA) which covers situations where another artist wishes to play your songs live.
• Australasian Mechanical Copyright Owners Society (AMCOS) which covers instances where someone wishes to make their own recording of your song.
• Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA) which covers sound recordings.

You may also wish to consider getting an International Standard Recording Code (ISRC). This is the international identification system for sound recordings and music video recordings which provide a method to automatically identify recordings for royalty payments. In Australia, this is administered by ARIA.

Conclusion

The area of copyright law can be a minefield at the best of times.

For musicians, the first step to protecting your rights is understanding them. Knowing what your options are if you believe they have been infringed by an individual or corporation, and when to seek legal advice, is the best way to secure a favourable outcome.

Bear in mind that there are time limits for commencing legal proceedings in copyright cases, so it is important to see a lawyer as quickly as possible if you suspect your copyright has been infringed.

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)

Touchstone Pictures 1999

There is also a difference between borrowing and stealing.

No one wants to be seen in the same outfit at a party.

Equally, designers do not want their original work replicated for the benefit of an individual or company without their knowledge or approval.

Design theft has always made up a portion of lost revenue for fashion brands. But a shifting dialogue in the clothing industry is now seeing designers and major fashion houses adopt a low tolerance approach and to fight back. The result is a brand new legal field blends law and fashion powerhouse industries.

Here are some examples of high-profile and successful law suits brought in the entertainment and fashion industries, how you can proactively protect your designs and what options may be available to you if your design is stolen.

Good Artists Borrow, Great Artists Steal

To draw inspiration is one thing, to contravene legislation is quite another.

Historically, the entertainment and fashion industries have traded in the exchange of creative ideas, as work from the past informs and shapes the present. The line between inspiration and innovation, however, has never been more blurred.

Of all creative fields, the music industry has enjoyed a long and glorious litigious tradition. Over the years countless artists have sued each other for copyright infringement. From Huey Lewis’ case v Ray Parker Jr; and The Rolling Stones v The Verve; to David Bowie and Freddie Mercury v Vanilla Ice. More recently, Pharrell Williams and Robin Thicke lost a record-breaking $7.4 million law suit initiated by Marvin Gaye’s estate for copyright infringement of “Got To Give It Up”. Ultimately, each case turns on the intersection between creative inspiration and infringing legislation.

It’s Not Blue, It’s Cerulean

As an emerging and highly-specialised area of law, fashion law covers intellectual property, business, finance and other issues impacting an item of clothing over the course of its life. In recent years, the practice of fashion law has exploded internationally. In the US, several independent fashion law institutes have been established to cater for growing demand for fashion law as a specialised field of study.

Litigation has since flooded the industry with a few major league cases paving the way for lesser known brands to sue for copyright infringement of original work.

Recent landmark cases have involved the likes of Converse shoes who sued up to 31 brands for copyright infringement of its Chuck Taylor All Stars sneaker design; Christian Louboutin who successfully pursued legal action against YSL for exclusive rights to manufacture shoes with a red sole; and pop icon Rhianna who successfully sued Top Shop for copyright infringement when her image was printed on T-shirts without her knowledge or permission.

Even top designers are finding that they are not beyond the long arm of the law. Yoko Ono has recently been sued for copyright infringement when she replicated the unique designs of a New York fetish designer.

Protecting Your Designs In Australia

The fashion law landscape in Australia is complex and relatively underdeveloped.

In Australia, the use of an idea or creative work without permission is regulated by intellectual property legislation. Australian law safeguards the intellectual property rights of fashion designers in four ways.

• Design law protects designs with commercial or industrial use
• Patent law protects new and useful inventions
• Copyright law protects original expressions and ideas
• Trade mark law protects your right to trade under your name exclusively. It is used to distinguish your goods or services and prevents a competitor from benefiting from your distinctive brand or reputation for quality.

Below is a checklist with some suggested ways to guard your interests under design, trade mark, copyright and patent legislation.

1. Register with IP Australia

In Australia, intellectual property is generated when you create a new or original work. For example, by designing an item of clothing.

To protect your design from being copied or misused, register your design with IP Australia. Registration prevents anyone from replicating the appearance of your garment, such as a shoe or handbag.

Before applying for design registration:

• Is your design new? This means that your design cannot be similar to anything else previously registered locally or internationally.
• Is your design distinctive? The overall impression or appearance of your design cannot be similar to anything else registered locally or internationally.

To ensure your design is original, research other designs using the IP Australia website.

If your application is approved, your intellectual property right gives you exclusive permission to use, control and profit from your design work.

2. Register your trade mark

To prevent a competing designer from piggy-backing on your brand name or label by offering a product that is substantially similar to your unique designs, register your trade mark. The Christian Louboutin v YSL case, for example, was fought entirely under trade mark law.

Before applying to register your trade mark:

• Search the Australian Trade Mark Online Search System (ATMOSS) to ensure no one has registered the trade mark before you.

A registered trade mark protects your right to sell your products exclusively.

Protection under trade practices and fair trading legislation can protect your trade mark rights against misrepresentation by competitors. However, litigation is typically more costly and time-consuming than simply registering your trade mark at first instance.

3. Copyright protection

In Australia, copyright protection protects your design upon creation if it is an original artistic work in material form. Fashion designs fall under the description of an ‘artistic work’ under the Copyright Act 1968 (Cth).

In order to receive automatic copyright protection your design:

• Must be in material form. This means it cannot be a mere idea. A sketch on a napkin, post-it note, scrapbook or smartphone app are sufficient. If you have commenced your artistic work in a material form then it is protected by Australian Copyright legislation from the time when you first write it in material form.
• Must be original. This means that your design cannot be copied from anyone else.

Copyright legislation does not protect your designs where someone has created the same, or a similar design, independently. An element of purposeful replication is required.

Always use a copyright symbol © [your name/brand/year] on your designs. This alerts others to the fact that your design is an original work.

Registration lapses after a certain period of time. See below:

Replicated from IP Australia.

4. Register your patent

To protect clothing or fabric that has a specific function, register your patent.

Registration for fashion designs is only available in certain circumstances since patents protect how a design works and not how the design looks. A patent will be relevant where you have developed new technology that has a specific function. For example, Speedo has patented new sportswear technology.

Sketch out a plan

The areas of law covering fashion design are complex and difficult to navigate alone.

If you suspect that someone is infringing your intellectual property rights, contact an IP professional. They will guide you through the costs and risks involved in pursuing an IP infringement, how to enforce your rights as well as your best course of action.

What experiences have you had with the fashion industry, design theft and enforcing your rights? Think we’ve missed anything? Leave us a comment below!

Further information

To register your design, trade mark or patent visit IP Australia.

For copyright queries contact the Australian Copyright Council.

To get in touch with a legal professional specialising in fashion law contact:

• Melbourne – Gi&Sanicki Lawyers
• Sydney – Media Arts Lawyers
• Sydney – Axis Legal; or
• Search the Australian Lawyers Directory for legal representation in your area.

For industry support contact the Council of Textile and Fashion Industries of Australia.

For a comprehensive guide to intellectual property for Australia’s clothing and fashion industry visit WIPO