Jonathan Deamer

August 2009: I just found this academic essay I wrote over three years ago knocking about on my hard drive.  Fairly basic undergraduate stuff, but I thought I might as well stick it online (Creative Commons, naturally), for people’s Googling pleasure.

It is evident from the definition of a magazine as a “periodical containing a collection of articles, stories, pictures, or other features” (Oxford Dictionary 2004) that an organisation which publishes such periodicals will have various intellectual property issues to deal with.  One might argue that this is even truer with publications that specialise in the fields of arts and entertainment, as their very subject matter is a copyrighted material subject to various intellectual property laws.

New Musical Express (NME) is the UK’s biggest selling weekly music magazine (Music Week 2006). In this essay I shall examine the intellectual property issues affecting the NME, both in terms of how it protects its own rights, as well as those of its contributors and writers, and how it avoids infringing the rights of the artists and musicians that the magazine features.  Although intellectual property is a broad area that covers copyright, trademarks and patents among other issues, this essay shall focus primarily on the first of these, with specific reference to the Copyright, Designs and Patents Act 1988 as it is most pertinent to the examination of a publication like NME.

It is important at this stage to define which elements of the NME are covered under intellectual property law.  According to Buying and Clearing Rights (McCracken, Gilbart 1995), works protected by copyright fall into various main categories: literary, dramatic, musical and artistic works, sound recordings, broadcasts, and typographical arrangements.

Section 3(1) of the Copyright, Designs and Patents Act 1988 states that “‘literary work’ means any work other than a dramatic or musical work, which is written, spoken or sung” (Dworkin, Taylor 1989), and so various textual elements of the NME come under laws that cover literary works.  It is worth noting that, based on this definition, a “literary work” need not have any literary merit in the traditional sense; this category therefore also includes tables and compilations.  Such works must also be original, “in the sense of ‘not copied’ rather than as a test of inventiveness” (1989).  A specific way in which these elements of intellectual property law impact on the NME is in its weekly gig guide.  A compilation of details regarding live music events occurring throughout the country constitutes an original literary work, and is therefore the intellectual property of the NME, even though the information is in the public domain and freely available to anyone who consults appropriate sources.  Further examples of literary copyright issues affecting the NME are the use of an artist’s lyrics, and the work of staff or freelance writers, both of which shall be addressed later in this essay.

In addition to parts of the magazine that may be deemed to be literary, much of the publication comes under laws concerning artistic or published works.  Although artistic works can be placed into three main categories covering works of art like sculptures and architecture (McCracken, Gilbart 1995), most of the artwork contained within the magazine is “that which most closely corresponds to what we generally think of as ‘artistic’, covering graphic works, photographs and collages” (1995).  As well as commissioned photography work, the NME publishes album cover art.  In addition, it is protected to some degree under the Copyright, Designs and Patents Act’s assertion that copyright protection of published editions gives publishers the copyright in the typeface and layout of their works (Dworkin, Taylor 1989).

When featuring writing that has not been specifically commissioned for the purposes of the magazine, such as in the case of publishing song lyrics, the magazine must ensure it does not infringe the author’s copyright in such writing.  A pertinent example of how the publishers of the NME deal with this requirement is the Act’s allowance of the use of extracts from a copyrighted work when such an extract is deemed to be “fair dealing for the purposes of criticism or review” (Phillips, Firth 1995).  Siva Vaidhyanathan’s book Copyrights and Copywrongs explains the concept that “without referring to or freely quoting from original works, it would not be possible for newspaper editorials, book reviews and satirical television shows to be created” (2001).  This provision of the Act is essential to the NME.  In a review of an album, be it critical or positive, it is permissible to publish an extract from an artist’s lyrics, which would otherwise be subject to copyright law. Vaidhyanathan says “How can a writer make fun of a television show without borrowing elements of its creative expression?  If the writer had to ask permission from the producers of the show, the parody would never occur” (2001).  In the same way, a magazine based around criticism of the arts would never be able to fulfil this function if it had to get permission from the copyright holders – an author would be unlikely to allow negative criticism of their work given the option.

However, one of the things publications like the NME have to deal with in terms of the Act’s provision for fair dealing is the question “what constitutes fair?”.  The Act “does not specify by length or quanity” (Phillips, Firth 1995), although it has been suggested that in order to gauge fairness, the publishers of the NME should ask themselves two questions:

• Will it harm the rights owner’s ability to exploit the work elsewhere?
• Are you using the most important or significant part of the original?

(McCracken,Gilbart 1995)

It is, arguably, unlikely that any use of copyrighted works (eg. lyrics) within a textual review would harm the rights owner’s ability to exploit the work elsewhere.  For example, a potential customer is unlikely to not buy a CD as the review takes its place – this would suggest that inclusion of lyrics within a review would constitute fair use.  However, the inclusion of sound clips in an online review of the same record may not be covered by the “fair dealing” defence as the use of such materials may affect the rights owner’s ability to exploit their work, ie. sell CDs containing the same sound clips.

In addition to this use of the fair dealing principle, Section 30(2) of the act also allows for “fair dealing for the purposes of reporting current events” (Dworkin, Taylor 1989).  This impacts on the NME both in terms of how it is able to itself report current events involving copyrighted works, and how other publications can re-report stories covered in the NME, which themselves will be protected by literary copyright laws.

An example of where the NME has been able to use this element of the fair dealing principle to its advantage is its recent publication of lyrics from Morrissey’s then forthcoming album Ringleader of the Tormentors (New Musical Express 2006 a).  It is recognised by the Act that “the musical copyright in a song is distinct from the literary copyright in the lyric” (Dworkin, Taylor 1989), and so it could be said that the publication of Morrissey’s lyric was an infringement of this literary copyright. However, according to McCracken and Gilbart:

“The practicalities of having to clear material day after day to meet extremely short deadlines would make it impossible to avoid infringement.  Free use in this context means that news reporting can retain its immediacy and that copyright cannot be used as a means of inhibiting reporting.  The public interest, in this instance, is taken to override the apparent interests of the publishers and authors”.
(McCracken, Gilbart 1995)

In the context of the magazine’s usual content, and its status as a music news publication, it could be said that the surfacing of these lyrics was a current event of interest to the magazine’s readership.  However, should Morrissey have wished to enforce his right of authorship, whether such use did indeed constitute the reporting of a current event would have been a matter for the interpretation of the courts.

As mentioned above, this principle of “fair dealing for the purposes of reporting current events” (Dworkin, Taylor 1989) also applies to other news and media organisations if they re-report a story originally publish by the NME.  For example, Liverpool-based music website Gigwise recently had as its front-page news story “Thom Yorke snubs meeting with Tony Blair”, (Colothan 2006) with the associated article containing quotes from an interview with the musician that had been published that day in NME.  While the interview, and quotes therein, are copyrighted material, Gigwise was able to publish them on the basis of them being news worthy, as long as credit was given to NME (see above McCracken and Gilbart quotation).

Despite the above instances of when it is permissible to publish copyrighted material, the authors of such material still have rights as to how it may be used, which must be taken into consideration by the publishers of the NME.  Perhaps the most notable of these rights as defined by the Copyright, Designs and Patents Act 1988 is the author’s moral rights.  McCracken and Gilbart explain that “the author’s rights are integrally bound up with a continuing interest in the work”, and so even when copyright may be transferred by the author in a commercial transaction, moral rights (as they are known) are inalienable and continue to operate even if the copyright in a work has been passed to someone else (1995).

In order to fully understand how the NME and those who write for it deal with the issue of moral rights, it is important first to understand how the copyright of the magazine’s individual writers is assigned.  The magazine has 25 full-time staff, but over 50 freelance photographers and writers (New Musical Express 2006 b).  Under Section 11(2) of the Act, “the copyright of a work made by an employee in the course of his employment belongs to the employer”.  The exact definition of an employee as opposed to an outside contractor or freelance worker is an in depth issue more fully dealt with by employment law itself, although for the purposes of copyright law a freelance worker does not count as an employee, and therefore keeps all rights in relation to his or her work (Dworkin, Taylor 1989).

The previously mentioned Morrissey article can be used here to illustrate another point.  As a news article, this would have been written by the NME’s News Editor – a full time employee.  While the moral right of identification (part of “paternity rights” according to Dworkin and Taylor (1989)) would normally dictate that the author of this work had a right to be acknowledged as such, no such acknowledgement can be found (New Musical Express 2006 a) as, according to Dworkin and Taylor “employees who produce works in the course of their employment are not entitled to any credit for them in relation to lawful dealings with the works” (1989).  Freelance writers, however (based on the publication’s list of editorial staff (New Musical Express 2006 a)) can be seen in the magazine to receive credit for their articles by being named as the author in keeping with legal paternity rights.  While such credit may also be given to staff writers as a matter of courtesy, it is not a legal requirement in the same way that moral rights dictate it is for freelancers.

Although there are no sources available that explicitly detail the intellectual properties of NME, or its rival magazines, after having compared its practice as evidenced in its published issues to the theory laid out in the Copyright, Designs and Patents Act 1988, it is evident that there are three main intellectual property issues that impact on the magazine:

• As a creator and publisher of original works, it must be aware of its own rights to prevent the copyright in its own works being infringed (see the above Gigwise example).
• While various laws allow the use of copyrighted materials in reviews, it must always be aware that it must not harm the ability of copyright owners to exploit their works elsewhere.
• It must be aware of the intellectual property laws that govern the way it treats the works of its own employees.

While this essay has been based on the law as laid out in the 1988 Act, it is worth noting that publications like the NME are used to some extent as marketing tools by bands and record labels.  To this end, it is unlikely that a band would bring court proceedings against NME for use of their work in the magazine, as such uses effectively function as free advertisements.

Furthermore, it is outside of the scope of this essay to deal with the intellectual property issues raised by the NME website, and the cover-mounted promotional CDs that are occasionally included with the magazine. Given the multi-media capabilities of these formats, specifically sound, there is obviously much more potential for copyright infringement than with a primarily text-based magazine.  However, it is possible to conclude from this investigation into the intellectual property practices of NME, and how these affect or are affected by the artists covered in the magazine, that the overriding principle in dealing with intellectual property laws is to bear in mind McCracken and Gilbart’s question “Will [this use of protected material] harm the rights owner’s ability to exploit the work elsewhere?” (1995)

Bibliography
Colothan, S (2006) Thom Yorke snubs Tony Blair, Available online http://www.gigwise.com/news.asp?contentid=14884 (25th March 2006)
Dworkin, G. Taylor, R (1989) Blackstone’s guide to the Copyright, Designs & Patents Act 1988, London, Blackstone Press.
McCracken, R. Gilbart, M (1995) Buying and Clearing Rights, London, Chapman and Hall.
Music Week (2006) New Audit Bureau of Circulation Figures, Available online http://www.musicweek.co.uk/news/news_page.asp?newsid=8958 (16th February 2006)
New Musical Express (2006 a) ‘Ringleader of the Tormentors’: The Ultimate Guide, (21st January 2006)
New Musical Express (2006 b) NME Editorial Staff, (22nd February 2006)
Oxford University (2004) Oxford English Dictionary, Oxford University Press
Phillips, J. Firth, A (1995) Introduction to Intellectual Property Law, London, Butterworth and Co.
Vaidhyanathan, S (2001) Copyrights and Copywrongs, New York University Press