"I'm feeling supersonic, give me gin and tonic": The story of Oasis (copyright edition)

Oasis are back, so ...

If you, like me, are now experiencing the full post-traumatic stress disorder caused by failing to secure a ticket yesterday for one of the 2025 UK and Ireland dates, you will agree that the biggest story of the week has been indeed the announced reunion – after 16 years of reciprocal insults – of brothers Noel and Liam Gallagher and Oasis.

There is little doubt that songs like Live Forever, Wonderwall or Supersonic have defined an era and had a cultural impact that has lasted till these days, including on GenZ and the ‘newly’ discovered haircuts, parkas, and bucket hats.

The story of Oasis and their reunion also presents a good opportunity to recap some of the IP issues that have concerned them over the years. As readers will see, these issues remain some of the most topical ones in copyright law as of these days.

Oasis songs: Definitely Maybe … pastiche

The intro to Supersonic is: “I need to be myself / I can't be no one else”. Well, that might be true in the ‘real’ world but is rarely true in copyright too.

Have you ever asked yourself why Oasis songs sound so good? One – though of course not the only – reason is because they sound like something good … from the past.

Indeed, several of Oasis’s songs pay homage to earlier songs of other artists – including the Beatles’ (Oasis have never hidden their admiration for them and one of Liam’s children is even named Lennon).

If you watch this video (and take a look at the sources listed in the description), you will find among other things that Oasis’s She’s Electric and Don’t Look Back in Anger are partly similar to While My Guitar Gently Weeps (The Beatles) and Imagine (John Lennon), respectively.

Noel has never made it a mystery that he enjoys paying homage to earlier artists. Such a homage is nevertheless relevant under copyright and related rights.

Reproduction under copyright and related rights

Insofar as copyright is concerned, in Infopaq [IPKat anniversary post here], the Court of Justice of the European Union (CJEU) introduced an EU-wide test of actionable reproduction for authorial works under the InfoSoc Directive: there is reproduction in part when the part of a work that has been copied is original in the sense that it is its author’s own intellectual creation. 

This broad understanding – which extends to the copying of short extracts of a work, as long as the choice, sequence and combination of elements is sufficiently original – is in line with the objective of the InfoSoc Directive to introduce a high level of protection of authors. 

The appropriateness of such an approach has also been upheld by UK courts, including post-Brexit. In Sheeran [IPKat here], Zacaroli J indeed confirmed that 

To amount to an infringement [under section 16 CDPA] the copying must be of either the original work or a "substantial part" of it […] This is a qualitative, not quantitative, question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work […] The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant's copyright work (or a substantial part of it)”.

Turning to related rights (note that, under UK law, everything is nonetheless called ‘copyright’), including the phonogram producer’s right of reproduction, the traditional view is that these rights are not subject to any threshold condition. In turn, any reproduction of protected subject-matter would be actionable. 

... Bucket hat: ✅

That said, in Pelham I [IPKat here], the CJEU adopted an admittedly odd test to determine actionable reproduction of the phonogram producer’s related right vis-à-vis third-party freedom of artistic expression. The Court ruled that any reproduction of a phonogram is actionable insofar as it is recognizable to one’s ear (the ear of whom, however, is unclear) and the part reproduced reflects the investment made by the rightholder. 

All the above indicates that paying “homage” to other artists can turn out to be a potential infringement of their and other rightholders’ (e.g., producers) rights, if done without a licence. That said, there are also potentially applicable defences to unauthorized borrowing, including quotation and pastiche. The latter is now at the centre of the pending CJEU referral in Pelham II [IPKat here].

Quotation and pastiche

Starting with quotation (Article 5(3)(d) InfoSoc Directive and section 30(1ZA) CDPA), its applicability is subject to fulfilment of the following requirements: 

• First, the quotation must relate to a work or other subject-matter which has already been lawfully made available to the public; 
• Second, unless this turns out to be impossible, the source (including the author’s name) must be indicated; 
• Third, the use at hand must be in accordance with fair practice and to the extent required by the specific purpose. 

In Pelham, the CJEU considered that the concept of ‘quotation’ must be understood with reference to its usual meaning in everyday language and be justified by the purpose “of illustrating an assertion, of defending an opinion or of allowing an intellectual comparison between that work and the assertions of that user”. In summary, to be lawful, a quotation must have a reason: specifically, there must be “the intention of entering into ‘dialogue’ with that work”.

Turning to pastiche (Article 5(3)(k) InfoSoc Directive and section 30A CDPA), as noted, there is not yet an EU-wide definition of it. Nevertheless, the UK Intellectual Property Enterprise Court (IPEC) recently considered and rejected the application of the corresponding UK defence in Shazam [IPKat here], in a case concerning copyright protection of a fictional character and reproduction thereof through an interactive dining show. 

The IPEC recalled that in his Opinion in Pelham I, Advocate General (AG) Szpunar held that: “[a]s for the concept of pastiche, it consists in the imitation of the style of a work or an author without necessarily taking any elements of that work”. Substantially discarding the Opinion of AG Cruz Villalón in Deckmyn [IPKat here], the IPEC considered that the everyday meaning of pastiche indicates that it is distinct from, and operates outside of, the genres of parody and caricature. Pastiche entails the imitation of the style of pre-existing works and the use or assemblage of pre-existing works in new works. It also needs to be noticeably different from the original work.

In light of the foregoing, it is arguable that the songs by Oasis that reference third-party work could at least be considered as an example of pastiche.

In any event, it is my view that the difference between ‘parody’, ‘caricature’ and ‘pastiche’ refers to a different field of application of these concepts, not a broader scope of ‘pastiche’ vis-à-vis ‘parody’ or ‘caricature’. ‘Parody’, ‘caricature’ and ‘pastiche’ are ways through which one’s own freedom of expression may be exercised by entering into a ‘dialogue’ with an earlier work or protected subject-matter and / or the ideas conveyed therein.

... Parka: ✅

Considering the requirements of the three-step test [see further here] – which UK courts also refer to (for example, Shazam expressly states that UK defences also need to be construed in light of the three-step test), an exception for pastiche still requires a justification for both the use of someone else’s work or other protected subject-matter and the amount thereof that has been reproduced, thus also entailing a consideration of the effects of the use on the market for the original work or protected subject-matter.

Artists’ contracts and internet piracy

Of course, the story of Oasis is also illustrative of:

• The importance of contracts. Oasis original drummer, Tony McCarroll, was for example sacked in 1995 due to a clash with the Gallagher brothers. He sued them for GBP 15 million over lost royalties, but the dispute was eventually settled out of court for a significantly lower sum: GBP 550k;
• The changes brought about by the shift from physical to digital/online and the crisis that the music industry faced at the turn of the millennium due to internet piracy: in this video, Liam eloquently explains the change in lifestyle that reduced earnings caused by reduced sales and the rise of unlawful internet downloads entailed.

Last but not least … Creation Records

And, of course, no post about IP and Oasis could overlook to mention one of the best UK copyright cases ever litigated: Creation Records v News Group. Decided in 1997, the case concerned unauthorized photographs of the scene assembled for the shooting of the cover of Oasis album Be Here Now. The judgment touches upon issues of breach of confidence and, above all, copyright protection of ‘unconventional’ works under UK law.

The UK has indeed a closed list of copyright works, with section 1(1) CDPA providing that:

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work— (a) original literary, dramatic, musical or artistic works, (b) sound recordings, films or broadcasts, and (c) the typographical arrangement of published editions.

Categorization is not only relevant to determining copyright subsistence in a work, but also the rights attaching to such a work. So, for instance, section 21(1) CDPA excludes the right of adaptation for artistic works, while providing expressly for it in relation to literary, dramatic and musical works. Similarly, section 17(3) includes conversion of a work into a three-dimensional form within the scope of the right of reproduction only for artistic works, not also literary works.

While the action in Creation Records succeeded on the ground of breach of confidence, it failed on the copyright front: the High Court denied protection to the work in question (the assembly of a scene), due to the impossibility of placing such work within one of the categories provided by the CDPA.

Of course, this is not the only instance in which unconventional works have been denied protection in the UK: another famous example is the Stormtrooper Helmet from the Star Wars films. Until recently uncertainties also surrounded the protectability of TV formats [Banner, discussed on The IPKat here] and fictional characters (again, Shazam).

My view for several years has been that the UK closed-list approach is incompatible with both international and EU law. Interested readers can read more here and here. In a nutshell, consistent case law of the CJEU indicates that it is necessary and sufficient for a certain subject-matter that qualifies as a work to be original to be eligible for protection. 

In sum

While it appears likely that further dates will be added to the 2025 Oasis tour, including concerts outside Europe, in the meantime you can re-discover Oasis discography with some gin and tonic (if you wish), but also with some IP trivia in-between.