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The Beatles: The Lost Concert, a documentary about a Beatles’ concert held in Washington DC in 1964, was at the centre of a copyright infringement claim in the recent case of Sony/ATV Music Publishing LLC, Sony/ATV Music Publishing (UK) Limited v WPMC Limited, Iambic Media Limited (In Liquidation).
The documentary incorporated video clips from the concert, which included the performance of twelve Beatles’ songs. Claims were brought against WPMC/Iambic, the documentary-maker, by both the US and UK entities of Sony/ATV as the copyright holders of the twelve songs in the US and UK respectively.
The judge had three issues to decide as set out below; the first two were concerned with contract law issues and the third a copyright law issue.
Various email correspondence passed between Mr Hunt (director of WPMC/Iambic) and Ms Masters (head of synchronisation and marketing at Sony/ATV) which WPMC/Iambic contended culminated in the granting of a licence.
The judge held that whilst the emails certainly discussed the possibility of such a grant, all communications were headed “subject to signed contract” which made it clear that such a licence would not be granted until a signed contract was in place. Accordingly, it was held that WPMC/Iambic did not have a licence to exploit the copyright in the video clips of the concert.
The next issue for the judge to decide was whether Sony/ATV were estopped from denying they had granted a licence.
The judge acknowledged that a defence of proprietary estoppel can be advanced in respect of copyright and WPMC/Iambic put forward the argument that despite the use of “signed contract” in the email header, Sony/ATV represented that a licence would be granted if certain conditions were met and WPMC/Iambic had reasonably relied on these representations to spend considerable sums in producing the documentary.
In making his decision, the judge noted that Sony/ATV had been careful to use the wording “signed contract” (emphasis added) which highlighted that it was only an agreement in principle and not a legally binding contract.
Accordingly, Sony/ATV were entitled not to grant the licence and WPMC/Iambic’s use of the copyrighted works was an infringement.
Although the documentary was made in the UK, it was intended for use in the US and a claim was therefore brought by the US copyright holders of the songs performed in the concert footage for breach of copyright.
Under US copyright law, fair use of a copyrighted work is not infringement of a copyright even if there is no licence in place. In determining whether the use of a copyrighted work is “fair” a number of factors need to be considered including whether the use is commercial and the amount and substantiality of the portion used in relation to the copyrighted work as a whole.
In this case, the documentary was commercial in nature and the twelve songs in the footage were played almost in whole. Accordingly, the judge determined that the documentary did not amount to “fair use”.
This case sets out some clear take-away points for programme-makers including:
This article was written by Genevieve Morrall. For more information please contact Genevieve on +44 (0)20 7427 6736 or at email@example.com