Posted On / 26.10.2021

Protecting your creations: are ideas two a penny?

With the increasing influx of creative talent to the South West, it seems like a good moment to consider the sort of issues faced by those who wish to protect and exploit intellectual property, in particular copyright in the written word, art, music, photography, or film. Brian Levine, the Head of Media, Entertainment, and Intellectual Property at Battens Solicitors reports.

In the UK, copyright exists automatically when the expression of an idea is recorded.  Proving that can be more complex.  Patents, industrial designs and trademarks can be registered, but there is no Governmental UK copyright register, unlike the USA.  Posting a work to your lawyer or bank, the date stamp being the evidence as to the time of creation, was the old school way. 

We all have ideas. Legally, an idea, just by itself, is difficult to protect.  That idea needs to be written down, drawn, recorded (music) or photographed, made into something tangible that is capable of being “copied”.  It is not the idea that is technically protected by copyright, but the expression of that idea.

For example, a writer might say to her agent that she fancies writing a book about an elderly couple who decide to book themselves seats on a rocket to the Moon. She never writes it, but three years later the writer sees a book for sale, with an accompanying TV series, called “Oldies in Space”, created, apparently, by someone she knows is also a client of the agent.  Even though the agent may have mentioned the idea to someone who then wrote a book and a TV script, the other author has actually put in the time and work to create a copyrightable book and TV script that cannot be a copy of any work produced by the original author, as she never wrote anything. “Inspired by” a verbal, vague idea perhaps, but the law allows inspiration, as many works (some would say all) derive inspiration from what has gone before.

Contrast this to the recent lawsuit filed in the US against Spike Lee and Nate Parker, sued for copyright infringement over the feature film ‘American Skin’. In 2017, the Shaw brothers submitted a screenplay to a competition: it didn’t win, but it was circulated to the judges, a group of industry professionals. Two years later, Spike Lee’s film premiered at the Venice Film Festival.  Allegedly, the themes and storyline are “identical” and the screenplays bear “uncanny” similarities. The key to whether the 2019 film is adjudged a copy of the 2017 script is how heavily it copies it: one or two similar scenes may not be enough, unless word-for-word.  It has to be a substantial copy, enough for a court to see that the hard work of one author has clearly been copied by another.  If the Shaws can prove that they may be entitled to substantial damages.

So - the starting point is to flesh out your ideas into a copyrightable work.  You’re always welcome to talk to us about what happens next.

Please contact Brian Levine on brian.levine@battens.co.uk or call 01935 84625

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