Legal Advice on Copyright Infringement and Libel Action

P E R F E C T L E G A L M I N D S
S O L I C I T O R S
23 September 2018 OUR REF: FB234/2018
Perfect solicitors
7 Tabman Street
Civic ACT 234
Dear Lei Lan,
YOUR REQUEST
Following a meeting held at our offices on 15 September 2018, your instructions revealed as
below:
You are a composer and a singer. You write your own scores, and use lyrics that are not your
own because you admitted to be poor in that regard. In your admission, while some of the lyrics
come from poetry authored by Shakespeare; others emanate from the songs by Beatle, Justin
Bieber and Kanye West. You also stated that you have never sought their permission in your use
of their works; despite employing and incorporating them in your music.
You also indicated to us that in promoting your music you use homemade recordings as well as
features link drawn from favorite artists on you tube. Further, you pointed out that you have
received an email from Snark Hellgore notifying of a forthcoming legal battle.
Lastly you informed us that one Araminta posted via a Facebook platform statements that
associated you with infringement of other artists’ copyrights. You noted with concern that
Araminta has been incessant with her post without regard to the number of people who view the
post. It was your concern that her post portrays a bad picture to the consumers of your music.
Your request was for a legal advice on the way forward. Having sufficiently captured your story,
at least in our judgment we proceed to highlight legal issues that are disclosed and the law the
basis upon which we will tender our advice.

What are the Legal Issues?
1. Whether you have infringed Kanye West’s copyright
2. Whether you have an action for libel against Araminta.
What laws will be our reference point?
i. The Constitution of Australia
ii. Copyright Act 1968
iii. Defamation Act 2005
iv. Case law
Having highlighted the issues, we proceed to analyze each issue taking into account the position
of the statutes and case law.
Infringement of copyright
The primary Act, Copyright Act 1968 does not define the term copyright. The term has however
been defined by scholars. One of the scholars define it as an exclusive right that is vested on a
creator of a work to use it in whatsoever manner be it printing, publishing or copying it
(Thompson, 2007 P. 1).
According to Thompson (2007 P. 1), a number of expressions can be copyrighted, for example:
literary, which covers materials like books; dramatic, which concerns plays; artistic, which
involves images; musical, which covers songs; films; sound recordings; broadcasts; published
editions; and contents of websites and emails. It is noteworthy that copyright exists automatically
a work is created, and registration is therefore not a mandatory requirement though not excluded.
It can be done at one’s own volition.
Any other person apart from the owner who uses a copyrighted work must seek consent from the
owner, the consent can be granted via a license or assignment; where that consent is not
obtained, an infringement is held to have occurred. In that case, the owner entitled to remedies
such as damages, injunction among other equitable remedies available as the court may deem fit
to award.
The is the general rule, however the Act tampers with this general rule by striking a balance
between on the one hand, the incentive to creative work and on the other hand the public interest

(Berg and Breheny, 2014 P. 2). The intention is to oil the monopolistic tendencies that may
follow absolute rights given to a copyright owner. This is because, the government has the
guarantor of public interest must not sit back and watch copyright owners abuse or in any exploit
the vulnerable citizenry.
Accordingly therefore, there exists within the auspices of the Act the fact that has been upheld
by judicial pronouncements that a copyrighted material or expression can be used with a non-
owner without a claim of infringement being invoked or otherwise pursued. The starting point is
40, which provided thus:
“A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation
of a literary, dramatic or musical work, for the purpose of research or private study does not
constitute an infringement -of the copyright in the work”.
Section 41 states:
“A fair dealing with a literary, dramatic, musical or artistic work, -or with an adaptation
of a literary, dramatic or musical work, does not -constitute an infringement of the copyright in
the work if it is for the purpose of criticism or review, whether of that work or of another work;
and a sufficient acknowledgement of the work is made”.
At section 45 the Act provides acknowledgement as the first shield to non-owners; section 46
allows use for domestic purpose; section 47 for broadcasting. Further with regards to literally
work, use for non-profit purposes is provided not to constitute infringement. Non-profit purpose
can include employment of a work in academia.
In Carious v Prince, 714 F. 3d 694 (2d cir.2013): before the court was a determination of what
constitutes fair use as a defence to infringement of copyright; the defendant used the plaintiff’s
photograph to come up with a new meaning. Finding that the changes were insignificant and the
photograph was substantially the same, the court ruled in favor of the plaintiff (Ellison, 2013).
According to Lynette (2015 P. 3), to invoke a defence of fair dealing or use, the unauthorized
user must have either acknowledged the owner or employed the work for non-commercial
purposes. It therefore boils down to the circumstances of the case; even though the following
factors have overtime acted as a guide in determining what amounts to fair use: the object or