The Bluebells was a pop group who had a hit in 1984 with the song “Young at Heart”. The song was used in an advertisement in 1993 and enjoyed a new and greater popularity. The claimant, B, was a professional fiddle player who was hired as a session musician when the song was recorded in 1984. His case was that he wrote the violin part for the song without any significant input from the band members, and that his contribution was sufficient to make him a joint author of the resulting copyright musical work, alternatively a sole author of his part. The first defendant, H, the leader of the Bluebells, challenged B’s version of events. His case was that he explained more or less exactly what he wanted B to play. H also argued that the violin part did not make a significant and original contribution to the song, so that it was not a work of joint authorship, that there was no intention to create a work of joint authorship and that the violin part was not a work in its own right because it was not sufficiently original.
It was held that it was common ground that H had composed a large part of the music of the song. The court rejected H’s evidence that he had composed what later became the violin part before 1984. There was an intention before the recording session in issue to incorporate a fiddle part later at appropriate places in the recording. The final version of the violin part had not then been composed. There was a conflict of evidence about what happened at the recording session. The court accepted the claimant’s evidence that he was the author of the violin part, although H had given B an idea of the sort of thing he wanted. Applying s11(3) of the Copyright Act 1956 the court had to be satisfied that there had been collaboration in the creation of the work, that there had been a contribution from each author and that the contribution had not been separate. There was no basis in the English cases or the statutory definition for the requirement of a joint intention to create a joint work. In this case the song was created by a collaboration between H and B in furtherance of a common design. The violin part made a significant and original contribution of the right kind of skill and labour to the song and accordingly B was a joint author of the copyright in that work. The incorporation of a new part into the song in the way described did not make B’s contribution separate. From 1984 B knowingly permitted the Bluebells to assume that he would make no claim to a share in the royalty income from the song. Different considerations applied, however, in relation to the second success of the song in 1993. There was no reason why B was not entitled at that stage to claim his share and revoke his implied licence to use the song. It was not unconscionable to revoke the licence in 1993. Nor was it unconscionable for B to assert his rights in this action. B first asserted his right to be identified as an author of the song for the purposes of s78 of the Copyright Designs and Patents Act 1988 by an instrument in writing dated 15 November 1999.
“Intellectual Property Newsletter” August 2002
