LEGAL ADVICE
ADRIAN KERR FROM CONSTRUCTION LAW EXPERTS AND CEF PATRONS, MILLS SELIG, ADVISES ON HOW TO MANAGE A HARMONIOUS CONSTRUCTION DESIGN COPYRIGHT… Look at ‘The Shape of You’
A s miserable as it was to see Derryman, Johnny McDaid, having to defend himself in a London Court recently against allegations that he had copied someone else’s work, there was a slither of joy seeing him point out in Court that the phrase, “Shape of You,” which he used in the lyrics of Ed Sheeran’s smash hit of the same name, was drawn from that great Norn Iron leveller, “Look at the shape of ye.” McDaid and Sheeran are embroiled in an undoubtedly expensive Court battle in which they are accused of copying part of a song called, “Oh Why” by Sami Chokri when they co-wrote, “Shape of You.” McDaid and Sheeran’s defence is complex, but one of the main aspects of that defence is that there are only so many ways you can write a piece of music so that it appeals to the human ear, and their use of the first few notes of the pentatonic scale cannot be “copying” in a legal sense because that melody structure is very common. The defence put forward by McDaid
and Sheeran could easily transfer to the construction world in the sense that you can easily imagine a construction design dispute in which one party accuses another of copying its design, only for that other party to claim that there is nothing original in either design. Copyright issues in construction can and should be managed. We are all so used to seeing copyright licences in building contracts, consultant appointments and collateral warranties by now, that the scope for debate and dispute is perhaps more limited than it once was. However, insofar as copyright in construction is concerned, we do have some (hopefully) helpful tips: • If you employ others to carry out design, make sure that you have in place a written agreement in which you have agreed who can use that design, and where, when and how the design can be used and reproduced. • Recognise that on any project termination or contractor/sub-contractor insolvency is a real risk, and within the suite
of construction contracts put in place a mechanism setting out what will happen in relation to copyright in the event of termination or insolvency of a member of the construction/consultant team. • If you are a designer, protect your rights while recognising that others are paying you to be able to use them – make sure that whatever is agreed in writing, you include any restrictions you might need. The grim reality at the moment is that some businesses in the construction industry are struggling, and the risk of insolvency seems higher than it did at the turn of the decade. With that in mind, employers in particular should make sure that they have in place collateral warranties from all entities providing design services on their projects, because it is these collateral warranties that should include copyright licences to enable projects to continue following insolvencies and terminations. For further advisory information, please visit www.millsselig.com
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