From foreign courts,

come two cases that offer interesting lessons for US observers of the copyright environment.

First, there is a case from Canada that allows us for once to be grateful for at least one aspect of US copyright law. In a case involving a parody newspaper that made fun of the coverage of the Middle East provided by the newspapers of Canwest, one of Canada’s leading media conglomerates, the Supreme Court recently ruled that there is no exception to infringement for parody. The court went on to cite its own earlier decision that freedom of expression is not a defense to copyright infringement. In that case, the court wrote that “the Charter [the Canadian Charter of Rights and Freedoms]does not confer the right to use private property – the plaintiff’s copyright – in the service of freedom of expression.”

The law in the US is entirely the other way on this point – parody is a well-established purpose that is favored in the fair use analysis, and fair use as a whole has been recognized as the safety valve in copyright law that supports free speech. It is easy to see way this is so; if a copyright owner could prevent parody by claiming copyright infringement, it would be possible to suppress a lot of speech that would otherwise be constitutionally protected. Consider the case of the parody of “Gone With the Wind” that tells the story from a slave’s perspective and is called “The Wind Done Gone.” The estate of Margaret Mitchell wanted to prevent publication of “The Wind Done Gone” and succeeded in convincing a district court to enjoin the book on the basis of a copyright infringement claim. Fortunately, the 11^th Circuit Court of Appeals understood that our copyright law is not intended to suppress speech, and that sometimes use of another’s copyrighted work is necessary in order to express a particular point, especially when parody is afoot. Free speech, in this sense, trumps copyright ownership, and, on that point at least, Canada could take a lesson from the US.

The other case is from Great Britain and involves the ownership in the copyright to a classic song from the 1960’s – A Whiter Shade of Pale by Procul Harum. Unlike the Canadian case, this one applies a law very similar to US copyright law, but it does so to a very unusual and unexpected set of facts. Apparently, the justly famous organ part played at the beginning and in the middle of the song was written during studio rehearsals by a new member of the band, Matthew Fisher, who was hired to play a Hammond organ. After almost 40 years, Mr. Fisher challenged the copyright ownership in the song, claiming that he was a joint author with Gary Brooker, who originally wrote the song and has collected royalties all these years. There is a nice summary of the case here.

I rather think that I disagree with the result reach by the Court of Appeal back in April, but the decision is interesting and instructive for several reasons.

First, the judgment tries to divide the attribution right (a declaration that Fisher is, indeed, a co-author) from the right to receive royalties on the song in the future or to enjoin its exploitation without Fisher’s permission. This fundamental point is where the decision seems unwieldy and mistaken to me, but it is an interesting reminder of how other countries view the “moral” right of attribution, which the US does not recognize.

Second, Lord Justice Mummery (really!) does a very nice, careful job of picking apart the various threads of creativity and copyright in order to arrive at a reasonable decision about joint authorship. His decision is worth reading in order to understand the complexity of music copyright and the ways in which copyrights in different versions can layer on top of one another.  Since joint authorship is often a very important and debated issue for scholars, the careful and clear treatment of it in this case can be very useful.

Finally, there is a fascinating suggestion in the decision that “proprietary estoppal” might apply to defeat Fisher’s claim. This notion is ultimately rejected (although the same result is reached by a different route), but the discussion itself seems very significant to me. The concept being used here is very similar to “adverse possession” in the law of real property, and the effect of its application would be to give a user some real interest in a copyright if no objection has been made to the use over a long period of time. Essential, Mr. Brooker argued that his exploitation of the whole copyrighted work over forty years gave him a “constructive” right in the organ portion that Fisher could not disclaim after 40 years. I have suggested several times that something similar to adverse possession could be applied to copyright law to solve the orphan works problem, but this is the first case in which I have seen a court (albeit, not an American court) take that possibility seriously.