A Whiter Shade of Pale

July 31, 2009

The House of Lords’ decision yesterday that Matthew Fisher’s 38 year delay in claiming a share of copyright royalties should not prevent him claiming future royalties has been widely reported.

It is interesting therefore to focus here on how joint copyright arises, and how it came about that Fisher’s share was assessed at 40%.

Joint Copyright
The Copyright legislation regards the concept of a work of “joint authorship” as meaning:

“A work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors”.

One issue which is interesting to many people arises from the fact that the public place far more emphasis on ‘ideas’ than the law does.  However, copyright exists not in ideas but in the written expression of ideas.

So, what this means in practice is if someone participates by doing something like the writing of the book or otherwise shares responsibility for the form of expression in the copyright work he will share in the legal rights in the work.  On the other hand if he merely contributes ideas to help the creator of the copyright work to produce a better end product, then he gets no recognition from the law.

It is immaterial that he thought up the plot of the play or made suggestions for a comic routine to be included or, indeed, that he passed on his reminiscences to a ghost writer. It is not even good enough that the parties divided the job between themselves so that only one of them would do the actual writing.  See Flyed Microsystems v Key Radio Systems.

The Share
There is no requirement that joint authorship involve a 50:50 sharing.  It is possible for there to be a joint ownership in unequal shares.

In this case Mr Fisher’s pleaded claim was for a 50% share.  However, in the absence of any positive case being advanced by the defendants against that result the judge decided the question essentially by way of a subjective assessment of the significance of the involvement of each party.

On this basis he came up with a 40:60 split as he felt that Mr Fisher’s contribution to the overall work was on any view substantial but not as substantial as that of Mr Brooker, who was therefore accorded the greater share.

It is worth noting that the organ solo that Mr Fisher was responsible for does not add up to 40% of the length of Whiter Shade of Pale.  Valuing the percentage of someone’s contribution is always going to be difficult.  Just as in copyright infringement cases it is never possible to know whether copying even a small part of a work might amount to copyright infringement if it forms a “substantial part” of the work qualitatively speaking, so there can never be a simple way to assess the share that the contributed part of a work should have over the whole.

So in one copyright infringement case the judge had to decide whether a 20 second recording of a piece of music known as ‘Colonel Bogey’ (where the whole song lasted four minutes) infringed copyright.  In finding that it did, he said:

“this reproduction is clearly a substantial part of ‘Colonel Bogey’, ……. Anyone hearing it would know that it was the march called ‘Colonel Bogey’, and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital, and an essential part which is there reproduced”.

Any guesses as to what share of the whole such a 20 second recording would have had if it had been produced by somebody else.