Opinion

Plagiarism, inspiration or a breach of copyright?

Darren WoolleyThere has a lot of media focus on plagiarism of late, particularly in Malaysia where Leo Burnett is entering a legal tangle with a director who claims the agency copied her idea for a Petronas ad. So what is plagiarism, and how can creators protect their ideas? Darren Woolley explains.

The dispute over the authorship of the Cannes-shortlisted ad Rubber Boy has escalated into legal action and counterclaim from the agency. The issue brings to light that for a creative industry that generates value through the creation of intellectual property, the practitioners within the industry often have a poor understanding of their legal rights and responsibilities under the law. For the purposes of this discussion I refer to the various Intellectual Property legislation that conforms to the TRIPS Agreement.

Rubber boy

Rubber boy

While I do not want to go into the merits or otherwise of this particular case, which the courts will probably take a long time to draw a verdict on, you can read the two sides of the argument here and here.

I think it is worthwhile as an industry discussing the rights and responsibilities of those who create and work with intellectual property as part of your employment and would encourage everyone in the industry to understand the intent and the practical application of the legal Acts defining intellectual property.

The first and most basic issue is that copyright does not exist for an idea. Just because you think of an idea or even tell someone an idea, you do not have copyright protection for that idea.

Largely copyright exists when the idea or concept is recorded, written or captured in a permanent way. If I tell you a story I made up and you then write it down, the copyright is not in the story I told but in the manuscript you produced from my story. So while we may work in an industry of ideas, the legal protection of those ideas only comes into force when you record them in a permanent form.

Second, copyright ownership does not always reside with one person or company.

Copyright can be shared by any number of people and can be apportioned based on the contribution by each to the final work. In the case of the Beatles, Lennon and McCartney shared composer rights on all of their songs during their collaboration even though their individual song writing contributions would vary from one song to the next.

It also means that if you take someone else’s copyright such as a song or written or recorded story and make changes to it, then you are still in breach of their copyright as the band “Men at Work” discovered in the case bought by “Larrikin Publishing”.

In this case a three-second riff from their hit “Land Down Under” was ruled by the court to breach the publishing rights of the song “Kookaburra” held by Larrikin Publishing and they were awarded 5% of the royalty payments. So the notion that a whole script, book or painting or whatever needs to be lifted is flawed.

Likewise, when schoolyard experts start talking about the percentage changes in notes or words or the like, it is also flawed. The test of a copyright breach is based on the perception of copying or plagiarism and not a mathematical formula.

Third, the fact is that almost all creative work requires inspiration and that inspiration increasingly comes from other works protected by copyright. So ‘borrowing’ may happen subconsciously, or it may be deliberate. Either way, you are only at risk of litigation if the party can meet certain criteria. The first is that they have the motivation and the financial resources to mount the challenge. This is the biggest hurdle as the process is not cheap.

It is also why you should be very wary of breaching the rights of large organisations like music publishers and media outlets who have the means and the motivation to protect their intellectual property. They also need to prove that they own the copyright works in the first place and that this copyright existed prior to the claimed breach.

Finally they may be required to prove that the party breaching their copyright had access or had been exposed to the copyright works prior to the breach. These are all significant issues and why copyright litigation is not as common as you would expect in this day and age.

I particularly like this film ‘What is plagiarism’ from Malaysia as it raises a number of issues about plagiarism and copyright that are both legal and moral.

The fact is, anyone in the creative industry relies on the Intellectual Property laws to protect the value of their work. I believe it is therefore incumbent on all to learn and understand these laws and how they apply to you – if you value the work that you and your colleagues perform.

And it’s important not just to take often misinformed advice from the unqualified. In other words, do what I did and find a good lawyer, a specialist in Intellectual Property Law to ensure you know how your ideas can be protected.

Darren Woolley is the managing director of TrinityP3

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