Few things in life are free, but here’s a happy exception to the rule. Copyright exists automatically when you create a qualifying work. The Copyright Designs and Patents Act endows protection on your “literary, dramatic, musical or artistic works”, automatically and free-of-charge. And your works don’t need to be award-winning – an everyday business letter counts as a “literary work” as far as the law is concerned, even if your English teacher would disagree.
So why is it that a web search for “copyright registration” reveals multiple websites offering to register a copyright for a fee? Well, the “UK Copyright Service”, a trading name of private company Copyright Witness Ltd., say that their aim is “‘To provide secure, affordable and effective independent evidence of copyright ownership”. What these unofficial services appear to provide is an independent record that, at a particular time, a particular document, picture, or other work was uploaded to their servers. The service does not allow a work to be changed after upload, so the registration is supposedly an “accurate record of the content of your work as it was at the time of registration”.
Back in 2012 I wrote this post about copyright registration, expressing doubt as to the value of these unofficial registration services. It seemed to me that proving you had access to a work on a particular date was not the same thing as proving that the work was yours.
From time to time we still get enquiries about “copyright registration”, so I decided to do a little more digging into whether an unofficial copyright registration can really be useful. The hardworking team at Darts IP have collated thousands of IP decisions from around the world, so I searched their databases for decided cases in the UK where “copyright service” or “copyright registration” is mentioned. There were two relevant results.
Both of the cases found are actually trade mark oppositions / invalidation actions. If the use of a trade mark would be an infringement of someone else’s copyright, then that is a ground for cancellation of the mark, so “who created what” can sometimes be disputed in a trade mark case.
First up, UK IPO decision O-307-11. In this case, artist Alison Hendrick successfully persuaded the UK IPO hearing officer that she was the proprietor of the copyright in a drawing. Ms. Hendrick had registered her work with the “UK Copyright Service”, and this is mentioned in the decision, but it didn’t seem to play a large part in the overall result. Significantly, her opponent Tony Knight was found to have fabricated his purported evidence of authorship, and against this background Ms. Hendrick’s victory was probably inevitable.
Next, decision O-086-16. This dispute centred on two competing trade mark registrations of a logo for the band “The Danse Society”. The band, whose second album “Heaven is Waiting” reached no. 39 in the UK albums chart back in the 1980s, have changed their lineup several times over the years, but the departure of drummer Paul Gilmartin in 2014 resulted in a dispute over who was entitled to register, and use, the logo.
Again, the eventually victorious Paul Nash and Maethelyiah Pile had “registered” the mark with the UK Copyright Service, but little seems to turn on this. In fact, the hearing officer found that the copyright was owned by Mr Nash and another former band member, Steve Rawlings, contrary to the registration which named Mr. Nash and Ms. Pile. It does not appear that the departing drummer ever claimed to have had a hand in creating the logo, only that he had an equal right to use it on leaving the band.
A dispute over a band name is topical, because another unofficial registration service has just popped up, to some fanfare. Barney Wragg, previously of Andrew Lloyd-Webber’s Really Useful Group, has launched a new service “Band Name Vault”, which uses in-vogue blockchain technology to (in their words) “create an immutable record of every Band, Act or Group name that registers”. Again, there is some theoretical evidential value in the offering, but it is unclear how that goes beyond proving that a particular person registered a particular name at a particular time. Trade mark law, and its common-law cousin passing-off, is a complicated beast, and seems to be poorly understood by those behind Band Name Vault, whose website gives a hopelessly incorrect definition of goodwill. The “FAQs” relating to who “owns” a registration where there are multiple members of the band, and what happens when the person who registered leaves the band, reveal that the service will be entirely inadequate to resolve the kind of dispute which occurred over “The Danse Society”.
It is true that there are factual disputes which come down to “your word against theirs”, but part of a Judge’s job (and a UK IPO Hearing Officer’s) is to hear what witnesses have to say and read what documents they have produced, and come to a view as to what probably happened, taking into account all of the evidence. It’s impossible to know when someone lies and gets away with it, but as Tony Knight now knows, fabricating evidence is not likely to win you the day.
My advice? Keep good records of the creation of works which may be commercially valuable in the future. If it’s something that identifies your business, whether that business is musical entertainment or anything else, then use a trade mark attorney and get yourself a registered trade mark. If you can’t afford a registered trade mark, don’t waste the money you do have on unofficial services.