Tag Archives: ownership of copyright

A Whiter Shade of Pale

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.  See, for example the IPkat here.

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.

Will an extension to the copyright law really benefit musicians?

Play it again, Sam

Play it again, Sam

Recently, the European Commission announced that it would like to extend copyright protection for performers. Currently a performer’s copyright lasts for 50 years while an author’s or composer’s copyright lasts for their lifetime plus 70 years. The proposal from the European Commission would extend the performance copyright to 95 years. This change would mean that the copyright for sound recordings, for both the performers and directors, would be extended to 95 years.

Many opponents have pointed out that the change will give very few benefits to the majority of performers. According to the report by the Commission the change in law is likely only to bring in less than a £1 a year in royalties to performers. It has also pointed out that the increase is likely to hurt consumers the most causing a rise in prices and then only benefit the most powerful record companies and only the most famous of performers.

A government spokesperson told the BBC that “We are sympathetic to the European Commission’s goal of improving the situation for performers but we don’t believe that the current proposal achieves this aim. The UK believes the proposal is too complex and most of the benefits will go to the record companies rather than the performers. The UK is still considering the detail of this proposal and it will consider future alternatives that come forward.”

Although it is a laudable goal to help musicians earn more in royalties, the Commission needs to address other ways this might be achieved rather than by executing a complicated extension of copyright.

Joint Copyright appeal favours Procol Harum

The recent ruling in the Procol Harum copyright dispute illustrates the dangers of joint copyright. It is a huge practical problem which anyone whose business involves copyright works should pay heed to.

In the case it was decided that Matthew Fisher became a joint author of the musical work for the song ‘A Whiter Shade of Pale’ by composing the distinctive 8 bar melody of the organ solo, including the variation during its second repetition during a recording studio performance. The organ solo was described as “significant and as hugely famous.”

So, if you develop a product and another party does further work on it – beware that if their contribution is substantial enough, they could wind up having joint ownership of your work.This could have a number of unpleasant consequences, the most obvious one being protracted litigation.What may not be so well understood is that joint copyright has the potential to kill off your ability to use your copyright work.This is because if you and the other joint owner do not agree on your plans for the work, you are in a stalemate situation, with nobody having the right to exploit the commercial value in the work.

What does it take to create joint ownership? If a work is produced by the collaboration of two or more authors, where the contribution of each is not distinct from that of the other author(s), then there will be joint ownership.

So, for example, if two people jointly write a book, collaborating on all the chapters, researching it all – then they are likely to both own copyright in the final work. On the other hand, if they agree to split the workload so that one writes chapters 1-5, while the other writes chapters 6-10, then they will each have copyright over their own separate portions of the book – because their contributions will be separate and distinct.Where there is joint ownership over the whole book the parties would need each others’ consent in order to exploit the work.

So, if one party uses the material commercially without the other’s consent, they would be infringing the other’s copyright. Joint ownership can end up in messy litigation, so whether you are in the music industry, or in technology, or any other sector that generates copyright, it is critically important to sort out the copyright position before embarking on a project. So, my advice is:

1. Avoid the possibility of joint ownership arising as this is asking for trouble later on.

2. Don’t rely on a court of law as your failsafe option. It is far more cost effective to avoid fighting over a product.

3. Always make a point of discussing and agreeing copyright ownership questions in advance. Record your agreement in writing and make sure it is signed by appropriately authorised representatives of both businesses.