Copyright infringement… does it really come with the territory?

Written by William Miles | July 3, 2023


“Where there’s a hit, there’s a writ”, at least that’s what Ed Sheeran now thinks having fought off many claims against his successful body of works. But is that always the case or can steps be taken to avoid provoking copyright infringement actions?

Let’s start with the basics, copyright is one of the most ubiquitous and useful intellectual property rights, it has a very long term of protection (typically 70 years from the death of the author) and, in the UK at least, it’s free to own as it doesn’t require any form of registration – it really is a cracker.

However, there still tends to be a lot of misconceptions about the contentious side of copyright law, i.e. infringement. In simple terms copyright is infringed when the whole or a substantial part of an original work is copied.

This means that you need an original qualifying work in the first place, such a piece of text or an artistic work. You also need to prove that it has actually been copied, so if your suspected infringer can show that they never saw your work, and created their similar work independently, they’re likely to have a very strong defence. And finally you need to show that either the whole of your work, or a substantial part of it, has been copied. Substantial part in this context doesn’t relate to volume, instead it’s a qualitative assessment (e.g. copying the eyes in the Mona Lisa may not amount to a large part of the painting but it is the most significant aspect).

So how can the risk of an infringement claim be reduced? Well, the best place to start is with the creation of your original work. When you wrote your text, or created your artwork, were you inspired by other sources (which is perfectly lawful) or did you actually replicate key elements from them (which is not)?

Also, in terms of the formation of the work, disputes can often arise between joint authors, particularly as copyright is an unregistered right, meaning that nobody will have a registration certificate with their name on. The risk of a dispute over ownership can be reduced if there are clear contracts in place setting out who owns what, which rights have been assigned or licenced and how royalties might be split in the future.

Finally, it’s important to maintain your paper trial when creating your work. If you have created your work independently then you will want to be able to prove it, sign and date drawings, keep records, and show your working. Ed Sheeran reportedly now films the creation of each of his songs for this very purpose!

Hopefully the above will help to reduce your exposure to a copyright claim but, if one comes along anyway, Briffa’s expert lawyers are on hand to assist. Just contact us for a free consultation meeting.


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