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Using 'Everyday' Quotes For Commercial Gain

 
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arthurseaton
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PostPosted: Mon Dec 13, 2010 3:05 pm    Post subject: Using 'Everyday' Quotes For Commercial Gain Reply with quote

Looking through the UK Copyright Law fact sheet, I can't find anything relating to using a quote from a person for commercial gain. For example, when the footballer Ian Rush made his legendary comment about living in Italy ("I couldn't settle in Italy - it was like living in a foreign country"), would it be possible to put this on a poster or T-shirt?

Also, where the fact sheet states "Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation, such as a logo, that combines these elements may be," is there any consensus on what a short phrase is? For example, could the Ian Rush quote above be called a short phrase?

Thanks in advance for any advice.
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AndyJ
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PostPosted: Mon Dec 13, 2010 10:46 pm    Post subject: Reply with quote

The commercial gain bit is not really relevant, as copyright infringement is not affected by whether copying is done for gain (although any damages might take that factor into account).
As for the general principle of using other people's quotations, I think that so long as the quote is just a few words and not more than a sentence, using it on a tee-shirt would be OK. Of course in many cases, whilst the quote might be well recognised, the actuall author may not be.
With the specific Ian Rush example you mention you would be on much safer ground because copyright adheres to the manner in which an idea is fixed (on tape, paper, canvas or film or whatever) and of course Ian Rush said the words but did not write them down or otherwise record them so they are not eligible for copyright. The fact that someone else recorded the words on tape or on a notepad gives them copyright only in what they recorded or wrote, but not the author's right to actual idea which was expressed.
On the general topic of the length of a phrase which is or is not copyrightable, I'm afraid there is no consensus. Indeed up until recently it was held that a newspaper headline alone could not be subject to copyright, but in a recent High Court judgement in the case of Newspaper Licensing Agency v Meltwater bv, Mrs Justice Proudman said "In my opinion headlines are capable of being literary works, whether independently or as part of the articles to which they relate. However, I am unable to rule in the abstract ... I find that some of the headlines are independent literary works; those that are not form part of the articles to which they relate."

In a similar case in 2009, a European Court of Justice found that extracts as short as 11 words could be copyright.
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arthurseaton
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PostPosted: Tue Dec 14, 2010 3:39 pm    Post subject: Reply with quote

Thanks for your swift response, that is very useful to know.
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typonaut
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PostPosted: Fri Dec 31, 2010 9:24 pm    Post subject: Reply with quote

AndyJ wrote:
With the specific Ian Rush example you mention you would be on much safer ground because copyright adheres to the manner in which an idea is fixed (on tape, paper, canvas or film or whatever) and of course Ian Rush said the words but did not write them down or otherwise record them so they are not eligible for copyright.


I think this is absolutely wrong. The point you are making is that for copyright to take effect there should be "fixation". From that point it does not matter who is doing the fixation, and the method of fixation need not ultimately be connected to the medium. ie a song can be fixed by sound or film recording, or by musical notation, or by any other means that someone can make sense of.

That the phrase may have been captured by audio or film recording gives next to no scope for the person doing the recording to claim that the "expression" is their copyright, rather than the person that uttered the words.

So, a copyright could arise from such simple phrases/quotes, but that seems unlikely as they wouldn't meet the de minimis criteria (which is another issue).

However, what you additionally have to bear in mind is giving rise to a claim of passing off - where the "celebrity" claims that your use of the phrase implies an endorsement by them over the "product" that you are offering (ie t-shirts). See Irvine v Talksport. (won't let me provide link, search for it on Google if you are interested)
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AndyJ
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PostPosted: Fri Dec 31, 2010 11:39 pm    Post subject: Reply with quote

@Typonaut.
When I said Ian Rush's words were not subject to copyright, what I meant was that he (Ian Rush) did not own the copyright in what he had said. This is based on the famous judgement in Donoghue v Allied Newspapers Ltd HC, Chancery Division [1937] 3 All ER 503. *
In this case Mr Donoghue was interviewed over a period of time by a journalist and a number of articles were subsequently published by News of the World. Donoghue sought an injunction, as a joint author and owner of the copyright in the articles, to prevent further publication. The court held that Donoghue was neither the author nor a joint author of the articles because he had supplied only the ideas for the article and there was no copyright in an idea.
I readily acknowledge that whoever did record Ian Rush's words for posterity did own copyright for the medium in which they were recorded (say in a newspaper article). But the OP would not be infringing copyright in a newspaper article by using the words which Ian Rush spoke, unless of course he was proposing to print a facsimile of the actual newspaper article, which I don't think is the case.

* This case itself reinforced the earlier judgement in Walter v Lane [1900] AC 539.
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typonaut
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PostPosted: Sat Jan 01, 2011 6:22 pm    Post subject: Reply with quote

I am of course aware of these cases. But I think that the real issue here is fixation, and it seems that must have occurred since people know the quote. It cannot be the case that a sound or film recording is the fixation, and then the copyright belongs (other than in the sound or film recording) to the person doing the recording, it must belong to the "author".

As an example, someone making an unauthorised recording of a concert cannot claim that they have any rights in the authorial element, or in the sound recording.
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AndyJ
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PostPosted: Sun Jan 02, 2011 12:49 am    Post subject: Reply with quote

I can do no better than quote Davey LJ in Walter v Lane:

"There is no copyright in a speech although delivered on a public occasion .. it is not disputed in the present case that the thoughts and words of Lord Roseberry's speeches were communicated by him in public, and no question is raised as to the existence of any right in the orator".
Although this case was decided in the light of the 1842 Copyright Act, the definition of an author with regard to copyright has not changed substantially betwen then and the 1988 Act. The judgement went on to say that copyright here existed only in the verbatim reporting of the speech in the Times newspaper (ie the fixation), and it was this copyright which the respondent (Lane) were found to have infringed by later reproducing the text of the speeches in a book.
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typonaut
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PostPosted: Sun Jan 02, 2011 1:09 am    Post subject: Reply with quote

I think the problem you are struggling with is fixation. In early cases it was a requirement that fixation was in writing - that's what the court is struggling with here.

However, in the CDPA 1988 the requirement is:

Quote:
s3(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.


One can see how, in a newspaper article, where there is some form of transformation (ie additional text), or interpretation, the copyright in the entire article might belong to a journalist/newspaper. But it's hard to imagine the individual quotes belong to the journalist. Likewise, as there is unlikely to be any transformation in a sound or film recording, then it seems unlikely that the copyright can belong to anyone but the author (ie not the person doing the recording).

In addition, it seems that the drafters of the 1988 act have taken into account Walter v Lane to explicitly give ownership in any copyright to the author:

Quote:
s3(3) It is immaterial for the purpose of subsection (2) whether the the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.
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