Asymmetrical warfare in Intellectual Property

Monday 4 March 2013

There is a lot of money in ideas. I’m not talking about inventions, necessarily, but the works of human imagination that are so frequently the subject of copyright and intellectual property disputes.

This is a formidable and specialised area of law that covers everything from knock-off clothes appropriating designer labels, to traders or artists innocently and unknowingly steering too close to areas that large corporations regard as their own private property.

This is an area of law that has always favoured the “big boys”. The traditional warning shot generally comes in the form of a multi-page letter instructing the supposed culprit, in considerable detail, to cease and desist, and demanding payment of legal costs. Defending this sort of claim is often extremely expensive, and large organisations can make such threats with relative impunity.

On the other hand, if an artist or a small trader feels that their intellectual property has been infringed by one of the larger players, they face the same uphill challenge to try and enforce their rights.

However, there have been a couple of cases relatively recently where help has been at hand from an unusual direction: the internet.

In December 2012 large games company Games Workshop attempted to assert ownership of the words “space marine,” starting with an email to Maggie Hogarth, a science fiction author, as she recounts here. Space marines have been patrolling the annals of SF since at least 1932, and the merits of GW’s claim look tissue-thin, but Hogarth’s books were withdrawn by a cautious Amazon after the games company contacted it. Hogarth took the matter to the Electronic Frontier Foundation and also publicised her situation widely on the internet to drum up support. Subsequently, Amazon has been persuaded to reinstate the books, and hopefully Games Workshop may have reconsidered its stance.

More recently, the singer/songwriter Jonathan Coulton, perhaps best known for writing music for the highly successful “Portal” games, found that a cover song he had produced had been used in the TV show Glee without his knowledge or permission, and with no credit being given. Legally this is a difficult area: because the song was a cover and not an original, he was not protected as the song’s creator. The response he received from the show’s producers, Fox, certainly suggests they felt themselves secure in their actions. He reports that they advised he should be “glad of the exposure” despite the fact that only Coulton’s detective work had uncovered the act at all.

Coulton, whilst the David to Fox’s Goliath, has a large internet following, and the story was on a large number of news sites and social media streams in very short order (just google “Coulton” and “Glee”), with widescale online opinion securely behind the songwriter and against Fox. Indeed, Coulton re-released his own track on iTunes “in the style of Glee”, pointedly donating his proceeds to charity and inviting Fox to do the same.

The lesson here is that an inequality of arms between a large company and an individual artist does not necessarily allow the big player to get everything its own way, especially in the media and entertainment industry where public opinion is so very important. A large company may still find its conduct the subject of global scrutiny and derision. “Naming and shaming” to highlight disreputable or overly aggressive corporate behaviour is easier than ever before in the information age.

If you think that your intellectual property is being infringed, please speak contact us on 0113 207 0000.