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Yes, an author has rights. Even in advertising music.
28.09.2020 the Supreme Court made a remarkable decision in the intellectual property field while analysing for the first time the protection of music in advertisements by copyright law and explaining which claims can an author file in a situation when his copyrights are infringed.
Although the copyright law act has been in force since 1992, the volume of copyright law disputes in Estonia is relatively small. There have been disputes specifically about music pieces (and parts of it) and their copyright protection even less.
Particular dispute has been covered previously in media and it seem clear. In 1994 composer Ivar Must created a music piece to Põltsamaa Felix advertisement ,,Põltsamaa ehtne ja hea’’ (Põltsamaa real and good). The ,,face’’ of the commercial was Ivo Linna, who performed the piece as well. Years later Põltsamaa Felix, known today as Orkla Eesti AS, still uses the theme song, conducted in 1994 by I. Must, in its commercials – having both Stig Rästa and Tanel Padar to arrange it (and presumably paid them for it). The composer’s consent has not been requested and no fee has been paid. And it is not considered necessary to pay.
For I. Must, starting a dispute was not the reason. Before going to court he tried to first and foremost sign an out-of-court settlement with Põltsamaa Felix. That did not work out, the company was relentless. Therefore, I. Must turned to court, claiming for remuneration, profit received from the unlawful use of the musical piece, compensation, and default interest.
Seems easy? It is not.
The Copyright Act does not provide certain rules for musical pieces, it only says that musical pieces are protected by the Copyright Law and they can be with or without words. As in practice only few disputes about intellectual property end up in Estonian courts every year, then it is complicated to solve these disputes because they are time-consuming and often disproportionately burdensome. It has been four years since I. Must filed a lawsuit to court but there is still no effective solution. I. Must had a dispute with a big company which resources (read: wallet) to hold a dispute seem endless. And that made the dispute even harder and more complicated. For example, though it could be assumed that the parties focused on making financial claims (and litigating) then the first four years cannot be summarized in this way. A significant part of county court dispute focused on whether I. Must is the author of the work or not. However, the whole dispute in the circuit court was based on whether Põltsamaa Felix infringed I. Must’s copyrights or not – i.e whether Põltsamaa Felix’s advertisements ,,Põltsamaa ehtne ja hea’’(Põltsamaa real and good) is 1994 I. Must’s composition which has been arranged or is it a new original composition (in every commercial). As well as can a part of a music piece be protected by the copyright law, and if yes how long does that part have to be. Therefore, surprisingly a significant part of the dispute was spent on a discussion whether changing a note and how many of them and/or changing a rhythm or a key, leads to the creation of a new original piece.
The Supreme Court’s decision did not give a final solution ither, but I. Must still sees it as kind of a victory. And that for following reasons.
First, the Supreme Court agreed that advertising music (and a part of it) is a creation which is protected by copyright. In the case of creation’s copyright protection, which presupposes the author’s own intellectual creation, it is important that the creation would reflect the author’s personality. If in the creation the author’s personality reflects and it reveals his free and creative choices then it is adequate to say that it is enough to meet the requirements of originality. Recognising a part of the creation may indicate that it bears particular authors handwriting. Therefore, even a very short few-second part of the creation (it is 2 bars long sound clip)can be protected by copyright and it’s usage without the author’s permission can be prohibited by the author, if author’s personality reflects from it and it shows his free and creative choices. The Supreme Court agreed with circuit court’s conclusions that the disputed ,,Põltsamaa, ethne ja hea’’ commercial background music is protected by copyright.
Second, the Supreme Court agreed with circuit court that I. Must is the author of the 1994. creation.
Third, the Supreme Court noted that it is usually difficult or even impossible for the author to prove that how the work was created by the author whose rights are allegedly being infringed, incl whether or not his work has been used in the process. Nevertheless, the Supreme Court agreed with circuit court conclusions that I. Must has proved that Põltsamaa Felix has used I. Must’s original piece arrangement in its commercials in 2013-2016 – i.e these pieces are not new and original works created by T. Padar and S. Rästa (as claimed by Põltsamaa Felix). The Supreme Court affirmed that Põltsamaa Felix has used I. Must’s creation in it’s advertisements without his permission and unlawfully.
Fourth, the Supreme Court affirmed that the author’s consent in principle to the use of a work created for this purpose in advertising does not mean that the author at the same time has agreed to the use of his work for a very long period of time in any way, including in many media channels and with various arrangements, without getting paid.
Fifth, the Supreme Court explained that a permission given to use commissioned work purposefully – for example in the current case the use of composition created for advertising in a (original) commercial – usually does not include a permission to make adaptions (arrangements) to the creation. Therefore, the Supreme Court also agreed with the circuit court that I. Must has not given Põltsamaa Felix a permission to arrange his music and that with an unlawful adaptation from I. Must’s creation, I. Must’s copyrights have been infringed. The fact that I. Must created the piece in 1994 to use in Põltsamaa Felix’s commercial and gave a permission for the use, does not later exclude the author’s right to rely on copyright infringement in a situation where a company has made arrangements from the piece and used it for decades in it’s commercials.
The court decision in question is definitely with a significant meaning. As the undersigned knows, courts have not analyzed a connection between commercials and copyrights previously as well as that the copyright protection of musical pieces (and its various parts) has not been analyzed in such a detailed manner in the past. Therefore, the Supreme Court decision and its conclusions presented in it are certainly important in further development of legal practice. As well, the decision gives musicians a legal certainty that even a short musical piece can be protected with copyright and its use without author’s permission is prohibited if author’s personality reflects from it and his free and creative choices appear in it.
Despite the Supreme Court’s decision though, I. Must’s and Põltsamaa Felix’s dispute has not come to an end. The Supreme Court sent the case back to the circuit court. Now in the case referred for a new adjudication proceeding the circuit court has to explain its conclusions on the payment of the amount of damage costs and solve I. Must’s additional claim for the income of copyright infringement. Therefore the dispute will carry on in the circuit court.
Anneli Aab/ LEADELL Pilv Law Office
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