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IV. INFRINGEMENT AND ENFORCEMENT
A large award of damages against Harrison was upheld on appeal. The appeal
court rejected a submission that the doctrine of subconscious copying was a
dangerous one: any other rule, it said, could “as a practical matter ..
substantially undermine” copyright protection: Bright Tunes Music Corp. v.
Harrisongs Music Ltd, 420 F.Supp. 177 (U.S.: District Court, New York,
1976), affirmed on this point, Abkco Music Inc. v. Harrisongs Ltd, 722 F.2d
988 (U.S.: Court of Appeals, 2ndCir., 1983).
- THE REASON FOR, OR EFFECT OF, THE INFRINGEMENT IS
IRRELEVANT
Defendants sometimes claim that their act, although not authorized by the
plaintiff, has caused him no harm and may even have benefited him. Other
times, they may claim that their motive or intent was innocent: they did not
know that their actions were wrong. Still other times, they may claim that they
did not profit from their act - e.g., they gave away infringing copies for free or
otherwise acted for the benefit of the public. They may even claim that obtaining
the plaintiff’s consent was impossible.
None of these pleas has impressed courts much. Infringement occurs once the
defendant does an act that is reserved to the copyright owner, unless the
defendant can bring himself within an exception set out in the Copyright Act or
some other statute.
- Infringement is avoided if the defendant’s acts fall within a
statutory exception. Acting from good motives and for the public
benefit is not, in itself, enough to avoid infringing copyright
A British television current affairs programme took as its subject people who
had sold sensational stories about themselves: so-called “cheque-book
journalism.” The programme included a 30-second clip from an earlier German
television programme that featured an interview by a British couple who had
sold the rights to their story to the German studio.
The German company sued the British company for copyright infringement.
The defendant eventually succeeded before the Court of Appeal (after losing
before the first instance court) on its statutory defence that it had dealt fairly with
the German programme for the purpose of criticism. A more general argument
that the defendant’s acts should be looked at sympathetically because of their
public benefit met with less enthusiasm before the first instance court:
Pro Sieben Media A.G. v. Carlton U.K. Television Ltd, [1998] F.S.R. 43,
reversed on other grounds [1999] F.S.R. 610 (U.K.: High Court and Court
of Appeal)
MR JUSTICE LADDIE in the High Court:
Once copyright exists in a filmed or broadcast interview then, prima facie, an unlicensed third
party cannot copy or broadcast a substantial part of it. He must go out and get his own interview.
Depending on the nature of the copyright work, he may well be able to take some of the
