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Motley Crue will not Feel Good

View profile for Christopher Buck
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Motley Crue will not Feel Good if they breach copyright law

Back in the 1980's, photographers Barry Levine and Neil Zlozower took many photos of American heavy metal band, Motley Crue, during their rise to international fame. The pair claim the photos were used as part of the band’s farewell tour, without their consent. We discuss the importance of Copyright law…

The photos

Motley Crue has sold over 100 million records worldwide and had a string of hit albums, including the chart-topping 1989 album, Dr Feelgood.

Since 2014, Motley Crue merchandise, including t-shirts, crop tops, vests, stickers, flags, patches and even baby grows, with photos taken by Levine and Zlozower, have been printed and sold. The sales of the goods lead to the band making more in merchandise sales than ever before. Levine and Zlozower insist they didn’t give their permission for the photos to be used, and are suing for a percentage of the profits.

The photographers maintain that they own the copyright to the photos. So what’s the likely outcome? That will heavily depend on the agreement made at the time, and whether Levine and Zlozower were employed to do the work, commissioned to do the work, licensed the rights to the work or sold the rights to the work.

Copyright explained

Copyright arises automatically and protects artistic output, so it requires no registration. Generally, it prevents the unauthorised copying of a work for the lifetime of the author, and for 70 years after the end of the calendar year of the author's death.

For a work to be protected by copyright it must be original, recorded and should comply with the requirements of the country of first broadcast or publication, and/or those of the permanent home country of the author.

Infringement of copyright can be categorised into primary and secondary infringement. Primary infringement includes providing work, or details of the work, to the public and making copies of it. Secondary infringement is where copies of the work, which infringe the rights of the rights owner, are provided and where they are imported.

Levine and Zlozower are claiming to own the copyright of the photos used on Motley Crue’s merchandise, and that the band has infringed their rights by producing and selling items with their work on to the public, without their consent.

Commissioned work

It’s a common error of commissioners to assume that, as they’ve paid a contractor to undertake work, they own the work’s copyright. This is in fact not the case under UK law. The copyright of work produced by a contractor for a commissioner is owned by the contractor, unless there’s a written assignment of the work.

It’s worth discussing ownership at the time the work is created, to prevent disputes, such as the current one between Levine and Zlozower and Motley Crue. This then allows for any assignment of rights or licensing, and makes for a clearer representation of copyright ownership. Where there’s no legal assignment, there may be equitable assignment inferred. But it’s still always best to deal with ownership from the outset, to prevent disputes and potential breaches further along the line.

Remedies available for breach of copyright

The following remedies are available where Copyright is infringed:

  • injunctions
  • costs
  • damages - this is the most common remedy sought
  • delivery up/destruction

If you have any queries about copyright law or need advice, please contact our Intellectual Property department on 01908 660 966 or email me directly on christopher.buck@franklins-sols.co.uk

Image courtesy of 123rf.com

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