Guest article on Wine Square
Date: 23rd October, 2009
The article Borrowed Notes by Jeanine Rizzo has appeared in the October edition of the wine newsletter Wine Square, which is edited by Mr Georges Meekers. The article discusses intellectual property issues encountered by wine critics.
Borrowed notes
The use of tasting notes as a marketing and sales tool in the wine industry has been an all-round success. However, the success of it all has apparently evaded those who really matter – the authors of the tasting notes themselves.
Their work has been “borrowed” and used without their permission in the sales and promotion of various wines they would have reviewed. This is where issues of copyright infringement enter the otherwise viticulture-centric jargon of wine journalists, critics and the like. “Copy-what?” I hear them mutter…
Copyright law protects the expression of our ideas, whether they take a literary, musical, audiovisual, dramatic or artistic form. It’s main objective is to secure your work against copying, when done without the authorisation of the owner. However, it is important to keep in mind that it is the expression of the work that is protected and not the underlying idea.
First off, one must ensure that copyright does subsist in the work. A tasting note would fall within the category of literary works, however words, slogans and possibly one-liners are too short to be classified as literary works precisely because of their length. Tasting notes are generally longer than that, and therefore will be classified as literary works. Copyright may consequently be said to subsist in the tasting notes.
Moving on to authorship, the author of the work is generally held to be the owner of the copyright therein. Therefore the owner of the copyright is the journalist or critic who has penned the tasting note.
Infringement of copyright occurs when others reproduce, distribute, publicly perform or make available the work without the author’s permission. In this case, it is reproduction which is the main complaint – other people are copying the tasting notes onto promotional material and wine lists. Legally, the owner’s consent must be sought in order to reproduce the work, in whatever format. The rules of correct acknowledgement and referencing also apply, however the crux lies in obtaining clearance from the owner.
With copyright it is the expression that is protected – it is the words used which are protected, so verbatim copies are definitely ruled out. Moreover, there are varying degrees of the quality and quantity of copying that may take place. With regard to quality, the substance of the text of the tasting note may be too generic, so it could be that any other writer, with no particular imaginative skills, would have said the same things about the wine. With regard to quantity, general copyright doctrine holds that a substantial amount of the work must be copied for there to be infringement. What amounts to a substantial amount is examined according to what the original work is – is the entire tasting note copied? The European Court of Justice, Europe’s highest tribunal has just last month pronounced itself in a copyright infringement case, stating that “extracts of 11 consecutive words could constitute the reproduction of a protected work, if the extract contained an element of the work which expressed [to readers] the author’s own intellectual creation”. This sheds new light on what is considered permissible.
Authors of tasting notes may therefore feel aggrieved that their notes are “borrowed” without their consent, thus raising questions at a copyright law level and, to a certain extent, issues about false endorsement – some give rise to legitimate claims while others do not. The truth is that every case is different, so every factor must be taken into consideration in order to identify the boundary of legality.
