#9570 - Copyright Case Law - Intellectual Property Law

A&M Records VERSUS Video Collections Limited

[1995] 3 EMLR 25

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 3^rd 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: 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 2^nd time around – no estoppel as claim only for earnings from date of claim

REFERENCES: Authorship CDPA88 S10(1)

Brighton VERSUS Jones

[2004] EMRL 26

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

REFERENCES: Joint authorship - CDPA S10(1)

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

Hadley VERSUS Kemp

[1999] EMLR 589

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 –...