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How Not to Avoid Copyright Breach

In a podcast earlier this month, pop star Ed Sheeran said that recent copyright disputes have changed how he makes music.

While he has been involved in several copyright disputes where someone has accused him of plagiarising/copying their original music, he says that he has never lost any such claim since 2017, and he puts it down to the fact that he records all of his writing/jam/practice sessions now.

The theory is that if he records the sessions, he has recorded evidence that any music that comes out of the sessions he made up himself and wasn’t a copy of anyone else’s music.

Erm … sorry, Ed – that’s like videoing a road you cross every day to avoid getting hit by a car.  You can still get hit, but now it’ll be on video.

Even if you don’t consciously copy someone else’s music during a session, that doesn’t mean that you haven’t actually done so.  All you’re doing is recording the moment you incorporated their music into something you play during a session.

You see, you can innocently infringe someone else’s copyright.  Any writer/composer will tell you that new music they create, whether in a jam session or otherwise, is always inspired by something – sometimes events, sometimes emotions, and sometimes by music heard recently.  If your music is inspired in part by music you heard recently, it’s not a big jump from there to being in breach of copyright.

The legal test is not a subjective one about whether you intentionally copied someone’s music – the test is an objective one involving what a reasonable person would conclude after considering your music, the other music, the various components of each and whether you had the opportunity to copy the other music (for example, is there evidence that you had previously heard the other music?).

This is not a criticism against recording your practice sessions – that’s always a good thing (especially when something catchy comes out of it – you don’t have the problem then to try to remember later what you played) … but it is not a good way to avoid breach of copyright – it’s simply a way to record it.

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A Less than Merry Pair of Perrys

It was Firework vs Fabric in the High Court recently when famous singer Katy Perry (real name Katherine Hudson) battled it out with clothes designer Katie Taylor over Ms Taylor’s registration of the trade mark “Katie Perry”.

It’s taken a while for this fight to get going, though – it all started back in 2008 when Ms Taylor (whose birth name was in fact “Katie Perry”) lodged a trade mark application to protect that name as her proposed clothing label.

By that stage, Katy Perry the singer was well-known but did not have a reputation in Australia in respect of clothing, so Ms Taylor was able to register the mark.

The timeline is interesting:

Timeline: Katie Perry vs Katy Perry

Year Event
September 2008 Katie Taylor lodges the Australian trade mark application for “Katie Perry” (for clothing).
Late 2008 Katy Perry (the singer) becomes internationally famous with her hit songs (“I Kissed a Girl”, etc.), but had not yet started selling clothes or merchandise in Australia under her stage name.
2009–2010 Katy Perry begins launching more merchandise globally (including clothing lines), but after Ms Taylor’s trademark filing date.
2010 Ms Taylor’s “Katie Perry” trade mark is officially registered in Australia.
Early 2010s Katy Perry’s brand and merchandising activity (including clothing sales) expands significantly, including in Australia.
2019 Katy Perry’s companies apply to cancel Ms Taylor’s “Katie Perry” trade mark in Australia (leading to the later court battles).

You can see both sides … Ms Taylor says she is just using her own birth name and not in the entertainment industry, while Ms Hudson (the singer) says Ms Taylor has done the equivalent of a guy named John Pope registering PopeMobile as a trade mark and starting up a car yard in Vatican City.

Unsurprisingly, Ms Hudson tried to knock out Ms Taylor’s “Katie Perry” trade mark. There are various reasons you can do that, and the Roar singer’s reasons included that:

  • The trade mark caused confusion with her own “Katy Perry” trade mark in which she had a real reputation (under s60 of the Trade Marks Act 1995 (TMA))
  • Ms Taylor’s use of her “Katie Perry” mark was likely to cause confusion (under s88(2)(c) of the TMA)

The trial judge in the Federal Court wasn’t having it.  In his view, singer Katy Perry did not have a reputation in Australia for the sale of clothing, there was no real likelihood of confusion occurring, and he exercised his discretion (under s89 of the TMA) not to cancel Ms Taylor’s mark since she has adopted and used it innocently.

The Full Federal Court, though, were on Team Hudson on appeal, reversing the first decision and ordering cancellation of Ms Taylor’s mark because, in their view:

  • Katy Perry’s reputation at the priority date was strong enough (even in name alone) to cause likely confusion (s60 again)
  • Even though she wasn’t yet selling clothes in Australia at the priority date, it was common practice for pop stars to sell clothing and merchandise, so confusion was likely
  • Ms Taylor’s use, even if limited, was likely to cause confusion in the future
  • The trial judge was wrong to use his discretion under s89 because Ms Taylor’s act of applying to register her mark (while knowing of Katy Perry’s fame) contributed to the confusion.

So, off we go to the High Court.  The first hurdle was to get the High Court to grant “special leave” to appeal the Full Court’s decision (you have to ask for that leave because, unlike when you go from a trial judge to a Full Court on appeal, you are not automatically entitled to appeal to the High Court just because you didn’t like the Full Court’s decision).

Ms Taylor’s lawyers argued on the special leave application that the Full Court got it wrong because:

  • The “likely confusion due to reputation” argument (under s60) only applies if the person has a specific reputation in relation to that trade mark for the relevant services, and Katy Perry the singer was not known at that time for her clothing sales – so the Full Court blurred her general fame with the requirement for a trademark-specific reputation
  • The likelihood of confusion at a later date argument (under s88(2)(c)) focused improperly on the singer’s potential future use of her mark (that is, on the basis that one day she might sell clothes) rather than her actual use (which did not originally involve that at all)
  • Filing a trade mark application like Ms Taylor did is not an “act” causing confusion that might prevent the trial Judge from exercising his discretion under s89 to cut Ms Taylor some slack.

The singer’s lawyers got a bit more technical but, essentially, argued that all of the above is really interesting but complete rubbish.

The High Court granted special leave and arguments begin in the High Court in early May … watch this space!