A useful model about the parameters of a musical composition
In 2020, an entrepreneur from Lutsk, Serhiy Lapkovsky, filed a lawsuit against the famous Ukrainian band “Antytila” with a demand to pay more than a million hryvnias. He accused the musicians of using the useful model No. 74516, patented by him back in 2012, “Method of setting the parameters of a musical composition according to S.O. Lapkovsky”.
In fact, this story dates back to 2017, when Serhiy Lapkovskyi filed the first lawsuit, but, according to him, two judges refused to consider it, however, already in 2020, the Podilskyi District Court of Kyiv accepted the relevant lawsuit for consideration.
Also, Lapkivskyi claimed that he previously contacted Serhiy Vusyk, a musician of the band “Antytila”, in order, according to him, to settle everything through negotiations. However, the musicians refused such a solution:
“Antytila” were offered to pay a certain amount and the claim would be withdrawn. But we did not go for it, because for us these are fundamental things. It is something similar to the fact that you are forbidden to use certain words in writing texts, or certain movements in choreographic productions. This is some kind of wildness. If we do not stand up for the truth, a court precedent may appear, and every artist of Ukraine may become the object of attacks. Because all musicians in one way or another use certain tonalities in their songwriting, which sound at a certain tempo,” – this is how band leader Taras Topolya commented on the situation on Facebook.
From the description of useful model No. 74516 “The method of setting the parameters of a musical composition according to S.O. Lapkovsky” published by the State Intellectual Property Service of Ukraine (note – the name of the body as of 2012) in the official Bulletin No. 20 dated 10.25.12. sounds like this:
“Lapkovsky’s method of adjusting the parameters of a musical composition includes the use of a system for adjusting the parameters of a musical composition. In addition, a technical operator is used, who enters the data of a musical parameter: tonality or tempo into the system, after which the corresponding data of another musical parameter: tempo or tonality is determined and output to the technical operator.”
To put it simply, we are talking about banning musicians from using certain tonalities and tempos in their songs. That is, the state body issued a patent not for a useful model, but actually for a theory that is not supported by evidence.
It is worth noting that part 2 of Art. 7 The Law of Ukraine “On Protection of Rights to Inventions and Utility Models” defines the condition of patentability of a utility model:
“2. A useful model meets the conditions of patentability if it is new and industrially suitable.”
Mr. Lapkovskyi did not offer anything new with his useful model, but only fraudulently managed to obtain a patent for something that had existed in the musical world for many centuries. He did it in collusion with Volyn patent attorneys, lawyers and music expert, composer Tymozhinsky.
“It’s like imagining that from now on artists can’t draw horizontal red lines in their work, but only blue ones, because someone strangely got a patent on red lines, as if they are perceived better by the eye. And now you have to pay, and then – draw. The absurdity of a purely Ukrainian patent goes off the scale. There is still work to be done in our country. And we will do it, because it applies to all musicians of the country”, – believes Serhiy Vusyk, a musician of the band.
Lapkovsky himself explains the essence of his useful model in response to a question from ZAXID.NET (from the article “Mozart did not bother” dated January 21, 2019) in this regard:
“I am a professional composer, I compose music. What did I come up with? My invention is very expensive. Because if a composer uses the tonality according to the tempo, he uses my invention. What is tonality? It is a frequency, each tone has its own frequency. There are 12 tonalities in an evenly tempered order. What is tempo? This is the frequency of alternation of fates. Previously, they did not bother to set the tempo to the tonality. I came up with this. All my compositions were made in this way for the first time in the world. Everything should be coordinated so as not to annoy you. And it was nice,” emphasized Lapkovsky, talking about the originality of his invention (a useful model)
Let’s emphasize that in Ukraine there is a concept of “patent trolls”, who receive official patents for well-known so-called “useful models”, trying to later demand royalties from those who use them – for example, patents for a hot dog, a ballpoint pen, disposable covers, a frying pan and even license plates.
It is obvious that Mr. Lapkovskyi and his accomplices are classic “patent trolls” who masterfully manipulate well-known scientific facts for their own benefit.
The essence of the lawsuits of the “Antytila” group and Lapkovskyi
In September 2021, the leader of the band “Antytila” Topolya T.V. appealed to the court to the defendants S.O. Lapkovskyi, SE “Ukrainian Institute of Intellectual Property” with a counterclaim for recognition of the patent for useful model No. 74516 “Method of setting the parameters of a musical composition according to S.O. Lapvoksky” is not valid.
In November 2022, Lapkivskyi appealed to the court with a statement to secure the lawsuit, with which he tried to prohibit the production, advertising, performance, use, sale, offering for sale, import and export of counterfeit musical compositions – songs of the band “Antytila”, namely “Molokom”. “Everything is beautiful”, “Danube”, in which the method described in the patent for his utility model was used, apparently without permission. And also, he demanded that the specified songs be removed from all digital platforms and radio broadcasts while the case is pending.
The Podilskyi District Court of Kyiv, by a decision dated November 17, 2022, refused Lapkovskyi to grant the application for securing the claim.
Lapkovsky S.O. this did not suit him, and through the appeal he tried to renew the court process, with the help of which he wanted to collect millions of hryvnias from “Antibody” for the alleged use of this patent in three tracks. But it did not happen as expected – on February 6, 2023, the Kyiv Court of Appeal decided not to satisfy the appeal of Mr. Lapkovsky S.O., but to leave the decision of the Podilsky District Court of Kyiv of November 17, 2022 unchanged.
It was also interesting in this whole case that the woman who organized the search for patent violations turned out to be the mother of S.O. Lapkovsky. This became known during the review of the lawsuit of the band “Antytila”, by which the members of the band not only wanted to declare the patent invalid, but also to force the band to pay symbolic compensation in the amount of 1 hryvnia for the infringement of S.O. Lapkovskii’s copyright, in particular for copying the license disk.
During the court hearings, it turned out that Ms. Tetyana Lyfenko, who was, among other things, a defendant in the case, concluded an agreement on the performance of work on the expert evaluation of the songs of the band “Antytila”. She said that she did not accept the band’s lawsuit, because she did not copy or sell the CDs, but only bought them. She also noted that she has nothing to do with music, instead, she has a “commercial education”, and she herself works as a storekeeper in the “HIPPO” chain of stores. In her words at the court hearing: “I collected information, organized the work of outsiders.”
However, she could not explain what information, stressing that all the work was done by other people whom she hired under the contract.
The defendant said that at first a search was made for relevant information about patent infringement, and later CDs of the band “Antytila” were bought.
On the other hand, the lawyer of the band “Antytila”, Yaroslav Kuts, did not understand how a person without a musical education was supposed to conduct an expert evaluation of the band’s songs. He wondered why the Antytila band’s songs were researched.
“I don’t listen to that kind of music, but the band has aggressive advertising, it sounds everywhere, even near a lingerie store. There’s some fat on the queen’s head,” remarked Tetyana Lyfenko, obviously referring to the track “Everything is Beautiful”.
The lawyer of the “Antytila” band drew attention to the fact that the so-called expert reports indicated that the discs were copied, and their format was changed from MP3 to WAV. According to Ukrainian legislation, it was not possible to copy discs, because this is a violation of copyright. He emphasized that the discs had corresponding holograms that indicated that copyright was protected.
In court debates, he said that the tracks “Danube”, “Milk”, “Everything is beautiful” were copied, and therefore this is a violation of the copyright of the members of the band, who are the direct authors of these songs.
“The fact of copying was confirmed by the defendants themselves,” the lawyer emphasized and added that the tracks were used for commercial purposes, because the defendant Lyfenko received funds for conducting work on finding patent violations.
As a result, the court rejected the band’s claim, and the band filed an appeal against the decision of the court of first instance. But during the consideration of the case, it once again became clear what methods S.O. Lapkovsky uses. to achieve your goal.
Also, the lawyer of the Antytila band clarified one interesting detail: the songs of the Antytila band “Molokom”, “Vse krasivo” and “Danuy”, in which Lapkovsky sees a violation of his patent, were written even before this patent appeared.
If Lapkovsky were to win the case, he would set a precedent by being able to sue any musicians who allegedly use his patented method.
In turn, “Antibodies” initiated the initiation of a criminal case against Serhiy Lapkovskyi. The band “Antytila” accuses him of fraud.
Now you understand how important it is to take care of your rights, conduct court proceedings in a balanced and professional manner, and give a worthy rebuff to “patent trolls”. Our law firm has experience in resolving issues of copyright and patent rights in court and out of court. Contact as needed and protect your author’s works.
"Antytila" / a useful model / copyright / court / intellectual property
