27 February 2003

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Simkins early warning - Music

In our July 2002 early warning we commented on Beckingham v Hodgens, the
High Court decision in which the session musician Robert Beckingham pka
Bobby Valentino who played a violin part on the The Bluebells' hit "Young At
Heart" was awarded a share of the music copyright in the song. This
decision was upheld by the Court of Appeal last week.

The claimant Bobby Valentino was paid £75 for playing on the recording of
"Young At Heart". The unsuccessful defendant Robert Hodgens of The
Bluebells maintained that he was the composer of the violin part and the
owner of the entire music copyright in the song.

"Young At Heart" was a hit for The Bluebells in 1984 and again in 1993 when
it was used in a Volkswagen advertisement.

Bobby Valentino initially decided not to press any claim. In 1993 he
changed his mind and he informed Robert Hodgens that he would be making a claim.

Mr Christopher Floyd QC in the High Court found that Bobby Valentino was the
composer of the violin part. He also found that the three requirements for
joint authorship were satisfied. These requirements are that (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.

As a joint author Bobby Valentino was entitled to a share of the music
copyright. The judge also rejected arguments that Bobby Valentino should
not be allowed to raise his claim ten years after the event.

Robert Hodgens appealed to the Court of Appeal. It was not possible for him
to contest the finding of fact made in the High Court that Bobby Valentino
had composed the violin part. This left Robert Hodgens little alternative
but to accept also that the three recognised requirements for joint
authorship were present.

Robert Hodgens had two main grounds of appeal.

The first was that to the three recognised requirements of joint ownership
should be added a fourth - a joint intention to create a joint work. This
would have provided the basis for an argument by Robert Hodgens that he had
never intended that Bobby Valentino should be a joint author of the song.

The Court of Appeal dismissed the argument that there was a fourth
requirement for joint authorship. Intention to create a joint work was not
required by the relevant section of the Copyright, Designs and Patents Act
and it would be an undesirable addition.

Robert Hodgens' second ground of appeal was that the judge was wrong to have
concluded that Bobby Valentino was entitled to raise the claim at such a
late stage.

Robert Hodgens relied on the quaintly named "estoppel" principle. This is
the principle that where one party has led another to believe that a claim
would not be advanced and that other party relies on this to its detriment
the court will not allow the first party to raise the claim subsequently
where it would be "unconscionable" or unfair to do so.

On this issue Robert Hodgens also failed. It was important that Bobby
Valentino was not seeking any share of income prior to 1993 when he put
Robert Hodgens on notice that he was asserting a claim.

It was argued on behalf of Robert Hodgens that he had entered into a
publishing deal under which he had given the usual warranties as to his
ownership of music copyrights and indemnified his publishers against third
party claims. Similar arguments had met with a favourable response from the
courts in previous cases but on this occasion the Court of Appeal was
clearly unsympathetic. Lord Justice Jonathan Parker commented: "I remain
wholly at a loss to understand in what respect it could be alleged that Mr
Hodgens has suffered detriment in this respect."

There will be more of these claims so music publishers beware. The only way
to head off claims by session musicians is to deal with the matter at the
time the recording is made and obtain appropriate clearance documentation.
This is no easy matter as many session players have publishing deals
themselves and are not in a position to sign away their share of the
copyright in the songs to which they contribute.

Dominic Free
27 February 2003
151

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