Summary: Our regular update on developments in the world of IP, this week featuring a couple of cases in relation to the use of short samples from earlier records; a latest US case involving an allegation of copyright against Ed Sheeran’s hit song “Photograph” and the ongoing litigation between Samsung and Unwired Planet involving FRAND licences and patents.

Music and Copyright

Once a regular feature of IP litigation in the ‘90s, music disputes are having a resurgence in the last 12 months or so. The latest case involves an allegation of copying against Ed Sheeran in the US courts regarding his hit “Photograph” made by the writers of a song called “Amazing” for X-Factor winner Matt Cardle – you can compare the two songs. In the UK, George Harrison was successfully sued for “unconscious copying”, so you can infringe copyright by hearing a song and then subconsciously recalling it when writing a later song. Similar issues are being tried in the US case against Led Zeppelin regarding “Stairway to Heaven” and the Spirit song “Taurus”.

Music and Copyright

Continuing the music cases theme, a slightly different approach is seemingly being taken involving the use of short samples from earlier records in some countries at least. A German court last month declined to find copyright infringement following the use of a short sample taken from the Kraftwerk song “Metall auf Metall”, saying that it would have been too impracticable to have recreated the sound from the original recording, and that the new record had no adverse commercial effect on the Kraftwerk song. Practicality of copying and the need for detrimental commercial effect on the original work have never been requirements of UK copyright law. In the US, a horn sample used in Madonna’s hit “Vogue” taken from a song called “Love Break” was this month found not to infringe because it was so short. In contrast, I once recovered a 5-figure sum for the use of a well-known photograph in a Hollywood feature film which was visible for just a fraction of a second, but which had copied the whole work rather than a small part of it.

FRAND Licences and Patents

In the ongoing litigation between Samsung and Unwired Planet, Samsung were partially successful in the Court of Appeal which found that it was arguable that an assignment of patent rights from Ericsson to Unwired Planet fell short of a full assignment of the non-discrimination aspect of Ericsson’s FRAND obligation (the duty to grant licences for essential patents on fair and reasonable terms), which rendered the assignment anti-competitive and void since Unwired Planet could require higher royalties from future licensees.