Copyright Case Law Notes

Robin Ray [1988] FSR 22 A&M Records [1995] 3 EMLR 25 Beckingham [2002] EWHC 2143 (Ch) VERSUS VERSUS VERSUS Classic FM Video Collections Limited Hodgens Copyright KEY RULE: The person that creates the content is the author and owner of the content (unless an employee) FACTS OF THE CASE: Back in mid-1990s Classic FM launched and its take on popular classics very quickly became a success. Central to this success was the artfully constructed playlist compiled over many years by Robin Ray, a broadcaster, actor, and musician famed for his encyclopaedic knowledge of classical music. Ray listened to, graded, categorised and assessed for popular appeal around 50,000 recordings. Ray's efforts formed the backbone of Classic FM's playlist Classic FM formed a lucrative sideline by licensing those playlists to overseas radio stations to which Ray objected Ray sued and won. The Court held that Classic FM was not a joint copyright owner with Ray and neither was Ray an employee of Classic FM. They had a licence to use his work for UK Classic FM but not for sale overseas Classic FM exceeded the terms of that licence by sub-licensing the lists overseas with Ray's permission NOTES: In Obiter: Joint authors hold copyright as tenants in common, so are entitled to equal shares regardless of their input. Joint owners all have to agree before any exploitation of the work is permissible. It isn't sufficient for a joint owner to licence material to a 3rd party and give a share to the other owners. REFERENCES: Authorship. CDPA S16A (infringement to make copies), S173(2) consent of all owners required Copyright KEY RULE: The first owner of a copyright act is the person who makes the arrangements FACTS OF THE CASE: Torvill & Dean wanted to create music to dance to. Their service company, Inside Edge ("IE"), was given the task of doing this. IE engaged a Mr Pullen who in turn engaged an arranger and a conductor (R). It was common ground that R commissioned and paid for the musical arrangements, booked and paid for the studio, arranged and paid for the attendance of the 51 musicians necessary to make the recording, engaged and paid for the scoring, a sound engineer, and a fixer and paid for all expenses of the sessions such as meals, taxis, etc. Held that IE owned the copyright. It undertook the arrangements through Mr Pullen. R made the recordings, but Mr Pullen undertook the arrangements. It was also an implied term in the contract between R and Mr Pullen that IE would own the copyright. NOTES: Had IE not been the copyright owner, R would not have been estopped because he was unaware of his rights. The decision is another case on the test of first ownership of copyright in sound recordings under the CDPA. It is also interesting on the estoppel point, because R's lack of knowledge rendered it not unjust that he could have asserted his strict legal rights. REFERENCES: Ownership - CDPA S9 Copyright KEY RULE: For joint authorship three requirements must be satisfied (a) there must be a collaboration in the creation of a new musical work, (b) there is a 'significant and original' contribution from each joint author and (c) the contributions from each author must not be separate. A fourth requirement that both intended to create the work is not necessary FACTS OF THE CASE: Claimant was a professional violin player who was hired to play in the song "Young at Heart" by the Bluebells He claimed that he composed the violin part in the introduction of the song First instance held that claimant contributed violin part and was therefore joint author and joint owner On appeal at EWCA it was argued, inter alia, that joint authorship required an intention to create a joint work Held that nothing in the statute suggests this intention is a requirement. EWCA agreed completely with first instance judge NOTES: S10.1 states that the contribution should not be distinct so there has to be 'joint labour' and collaboration. In this case, on the facts, the section in question is heavily dependent on what was there already. Without the words the violin piece would appear odd and lose meaning. Claimant brought action when hit 2nd time around - no estoppel as claim only for earnings from date of claim REFERENCES: Authorship CDPA88 S10(1) Bamgboye [2004] EMLR 5 VERSUS Reed Brighton [2004] EMRL 26 VERSUS Jones Brooker [2006] EWHC 3239 VERSUS Fisher Copyright KEY RULE: To be a joint author the contribution must be to the creation of the musical work, not to its performance or interpretation. The contribution did not need to equal in terms of quantity, quality or originality with that of the other collaborators, but it had to be significant. FACTS OF THE CASE: Concerned the copyright in the musical work and the sound recording of song 'Bouncing Flow' Bamgboye worked as a trainee tape operator and sound engineer at a recording studio and contributed drum and bass-line parts and cymbal effects After the track was recorded Reed used equipment at Bamgboye's house to further work on the track Judge held that the driving force behind the project was Mr Reed and the final recording would not have been produced without his efforts. My Bamgboye contributed and so was a joint author of the work but Mr Reed (on the facts) was the producer NOTES: If there are two or more persons who are joint authors they own the copyright in equal shares, but it is suggested that is not an invariable rule because sometimes the authors may be joint tenants rather than tenants in common and in that case until severance there are no shares. In this case Bamgboye got 1/3 and not a 1/2 REFERENCES: Joint authorship - CDPA S10(1) Copyright KEY RULE: To be a joint author of a copyrighted work you must make a significant 'contribution' FACTS OF THE CASE: The defendant, Marie Jones, had written the script for the play 'Stones in his pockets" in 1966 and was listed as the sole author on publicity material. The claimant, Mrs Brighton, directed the first production of the play The defendant rewrote elements of the script in 1999 and achieved major commercial success Claimant alleged, inter alia, that she was a joint author and therefore joint owner due to 'contributions' made during rehearsals of the 1996 version of the play including suggesting changes to plot and dialogue. On facts, Mrs Jones, chose the edits and Mrs Brighton didn't contribute enough to be considered joint author NOTES: Although a contribution does not need to be equal in magnitude it does have to be significant Must be a contribution towards the creation of the work - other contribution do not affect authorship (e.g. extensive testing of software - Flyde Microsystems v Key Radio systems or performance rather than writing of songs (Hadley v Kemp) Person does not have to put pen to paper to be a joint author but can instruct others (Cala homes v Alfred McAlpine Homes East Ltd) REFERENCES: CDPA88 S10(1) - joint ownership - contribution, S104(2) presumption of ownership Copyright KEY RULE: Performers will also be 'authors' of copyrighted works if they make a significant creative contribution FACTS OF THE CASE: Gary Brooker wrote the chords and melody for "A whiter shade of Pale" Claimant, Matthew Fisher, was a band member and waited 38 years before claiming joint authorship and ownership of the song based his contribution of the distinctive organ sections First instance judge thought that the released song was an original work and not an arrangement of an original work of Brooker. EWCA (Mummery) said that it was an arrangement to which Fisher was an author but that he had given an implied licence and so was not entitled to royalties On facts the House of Lords held that the claimant could bring the action and he was declared a joint author and joint owner of copyright in the work with 40%. Recording contract though gave Essex a royalty free licence to exploit the recording. He will be entitled to royalties from covers and live performances but not from playing of the original recording NOTES: Traditional music industry practices are different to the law here so important that performers enforce their rights Compare with Hadley v Kemp REFERENCES: Authorship CDPA88 S10 Slater [2012] EWPCC 16 Feb 2012 Hadley [1999] EMLR 589 Fylde Microsystems VERSUS VERSUS VERSUS Wimmer Kemp Key Radio Systems Copyright KEY RULE: In making a film, the director and producer will be joint owners (tenants in common) FACTS OF THE CASE: This is an action about the ownership of copyright in film footage of a skydive over Mount Everest. The claimant, Stephen Slater, is a young cameraman. He shot the footage in question. His case is that copyright in it belongs to him. The defendant Per Wimmer is a financier. He paid for the trip, including Mr Slater's costs, and was one of the skydivers. He says the terms on which the event took place mean he owns the copyright. Mr Wimmer said he made it clear that all IP generated belonged to him and he paid for it. Mr Slater disputed this. There was no written contract. Mr Wimmer also claims implied rights S9(1) CDPA The author of a work is the person who creates it ( s9(1) ) and in the case of a film ( s9(2)(ab) ) that person shall be taken to be the producer and the principal director. The court held that Mr Wimmer was the producer and Mr Slater the director - in the absence of an agreement therefore the copyright was jointly owned Court also held that there were no implied terms and no contract signed NOTES: REFERENCES: Authorship - CDPA S174 - Definition of producer Copyright KEY RULE: To be an author on a musical work you have to make a 'significant contribution' FACTS OF THE CASE: Gary Kemp, one member of the band Spandau Ballet, wrote and composed most of the bands songs and was listed as the sole author including writing the chords, lyrics and melody for their hit 'True' All the band members performed the music. Other band members including Hadley (who performed the famous Saxophone solo on True) asserted that they were also authors and so owners of the song. The solo lasted for 16 bars or 9% of the total song length. Norman devised this solo around the chords that Kemp presented to him The court held that the creation of the solo was not a significant and original contribution' to the work. It was essentially the wrong type of contribution. NOTES: There is debate as to whether the chords presented to Norman was the original song and the released version was an 'arrangement' of the original or whether the originally presented chords was a 'prototype' or a work in progress and the released song was the original musical piece. If Hadley didn't write this string of music and Kemp didn't then who did? Compare with Brooker v Fisher REFERENCES: Authorship CDPA S10(1) Copyright KEY RULE: Authorship of a copyrighted work requires the right kind of 'significant contribution'. FACTS OF THE CASE: Fylde Microsystems made a piece of software Key Radio Systems thoroughly tested the software Key Radio Systems claimed joint ownership of the system Judge held that although Key Radio Systems contributed significantly to the project it was the 'wrong type' of contribution to quality as authorship. NOTES: REFERENCES: Authorship - CDPA88 S10 Walter VERSUS Lane [1900] AC 539 Cala Homes (South) Limited [1995] FSR 818 Infopaq International A/S Case C-5/08 [2009] ECDR 16 VERSUS VERSUS Alfred McAlpine Danske Dagblades Forening 

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