Page 85 - Law and the Media

Law and the Media
In the case of Designers Guild Ltd v Russell Williams (Textiles) Ltd (Trading as Washington
DC) (2001), which concerned two designers of a similar fabric, the trial judge reached his
conclusion by considering the similarities of the two designs and hearing evidence
concerning the opportunity of one designer to copy the other and the independent origin of
the defendant’s design. On appeal, the court held that it was not right to reach a view on a
subjective approach alone. An analytic approach was necessary.

Even where the issue of originality is clear, the case may be complex as a result of issues
relating to an application for an injunction or account of lost profits. In the case of Ludlow
Music Inc v Williams (2001), a song by pop star Robbie Williams called Jesus In A Camper
Van was held to have infringed copyright in the lyrics of a song entitled I Am The Way (New
York Town). However, the court refused the claimant’s application for an injunction. The
court held that the claimant had acquiesced to use of the song by Williams because of an
agreement to be named as co-writer and because of the delay in taking action for breach of
copyright. The court also held that an injunction would be oppressive because it would
enable the claimant to demand an excessive price for permitting the continued sale of
Williams’ album, which included the song.

3.2.3 Sound recordings, films, broadcasts or cable programmes

Copyright also exists in sound recordings, films, and broadcasts by television or radio or
cable programme. These works are usually referred to as secondary copyrights or ‘derivative
works’, because they are often based upon other copyrighted works, known as the
‘underlying rights’. However, copyright can still exist in derivative works:

. . . originality is not a criterion for the protection of sound recordings, films,
broadcasts and cable transmissions.

(Section 1(1)(b) of the CDPA)

Sound recordings
A sound recording is defined in Section 5(1) of the CDPA as:

A recording of sounds, from which the sounds may be reproduced, or
The recording of the whole of any part of a literary, dramatic or musical work, from
which sounds reproducing the work or part may be produced regardless of the
medium on which the recording is made or the method by which the sounds are
reproduced or produced.

The copyright in a sound recording attaches to the recording of the music itself, not the
compact disc or cassette it is subsequently played back on. The copyright in the song that is
recorded is the ‘underlying right’.
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