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IP in a festival?

In “Unique Idea of Festival Ownership” the Scotsman interviews Pete Irvine, who runs an Edinburgh based events firm, on his new approach to ownership of the events that his company creates:

After years of creating festivals and events through his Edinburgh-based firm, including the city’s famous Hogmanay celebrations, Irvine feels that the time has come for him to hold on to the intellectual property (IP), rather than hand over a finished project which eventually will be managed elsewhere.

“It is not about making money, but it is always the same problem,” he said. “We work really hard and, as a result of our studies and reports, events then get the go-ahead.”

I’m wondering what kind of IP it is that he is talking about. He mentions reports, which would obviously be an issue of copyright. Ownership in this would turn on the contract between the report producer and the commissioner of the report — and would be something that could be negotiated. The problem with copyright as an IP right for ‘ownership of a festival’ isn’t so much in the ownership of one work, the report, but rather the difficulty lies in the idea/expression dichotomy a long-standing copyright doctrine.

Ideas, those intangible sparks floating about, aren’t protected by copyright: Only the expression of an idea. So more than one person can have (and most certainly has had) the idea of a story about an unsolved murder and a detective who after several false starts finally solves the case. It is only when one gets down into greater and greater detail that copyright begins to adhere. The more abstract the idea, the less copyright protection.

The idea, for example, of a festival in the Highlands with an ecological theme isn’t something you would see protected by copyright — it is entirely too general. The report on how to plan such an event would be, but that report wouldn’t prevent anyone from also having a festival in the Highlands on the basis of copyright.

So back to the idea/expression dichotomy. While expresssions are the realm of copyright, ideas are the realm of patents. In the United States, a novel and non-obvious idea for a festival could possibly be patented as a business method patent. But business method patents, such as the famous Amazon One-Click patent, are not patentable in the UK and therefore wouldn’t be a route for ownership of a festival.

Certainly other IP issues are at stake in such an enterprise as a festival. Pitching a unique festival idea to a promoter could come within the law of confidence if the promoter then went on to use the idea without compensation. More importantly, trade mark, unfair competition, and passing off would cover all the branding for the festival, including the festival name. While none of these I see as automatically providing ‘ownership’ of a festival idea, the trade marks and other rights, do provide the possibility of ownership of a festival under a given name and limited rights to prevent imitation by others. Retaining this set of rights would allow his company to put on a series of festivals under the same name, such as the ‘Freedom Festival’ that he mentions:

Recently, Irvine has had a breakthrough on the IP front. “I’ve been in Yorkshire to work on a new festival, to the east of Leeds near Hull,” he revealed.

“At first we were doubtful, but it now has a concept that I believe can be really good. We are calling it the Freedom Festival and we will retain our rights. For us, this is us working on a whole new business model,” he added.

Beyond replicating the same festival under the same name elsewhere, we must not forget that this is a company that consults/organises festivals ultimately run by others. If they want to re-use text from one festival report in another report, they may infringe the copyright in their own first report. Even though they created it themselves, it is now owned by others and re-using the portions of it in other reports could be an infringement. If they re-use similar promotional materials they may come under an action of passing off or unfair competition.

In the end, I think it is the more mundane issue of simply negotiating ownership and control of the festival at the bargaining table. It involves IP — who owns the trade marks to the festival name and the copyright to the materials. But I think the key bit is who has the market power to say that they want to promote and organise a festival and retain the all the rights associated with it: including control over how the festival is run from year-to-year and the ability to put on the festival even if the Council (or whoever) backs out. Irvine mentions:

“We have a great team and make it look easy but at the end of the day, what we create doesn’t belong to us. It is then run by some public body and we can lose control. I understand public money goes into the festivals but using the Montreal Jazz Festival as an example, it lasts for ten days, brings in $35 million dollars but is still owned by the guy who created it.

“It is an issue with copyright and something we need to look into,” Irvine added.

While I disagree that the ownership issues are necessarily (solely) copyright issues, I think that he is feeling the pangs of any creator: He would like to have some control over a something that he has put so much effort into because he cares how it develops in the future. And like any business person, he also feels the pangs of a market that is right for him to start making more money.

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