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Bulletins Story:
BOBBY VALENTINO WINS SHARE OF COPYRIGHT IN THE BLUEBELLS’
"YOUNG AT HEART": BECKINGHAM v HODGENS
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Date:
17.07.2002
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The High Court decides that a session player is entitled to a
share of the copyright in the song on which he played. This
case shows yet again that the convention in the music industry and
the law are not the same.
Last week’s High Court judgment revisited the issue of the
backing musician’s entitlement to a share of the copyright in a
song on which he has played. Similar issues have been before
the court several times in recent years, the best known occasion
being Hadley, Keeble and Norman v Kemp (the Spandau Ballet case) in
1999.
The music industry convention is that a songwriter who comes up
with the chords of a song and its vocal melody is usually to be
considered its sole composer. However, these court decisions
show that convention in the music industry and English copyright
law are far from the same.
The claimant, Robert Beckingham pka Bobby Valentino, had been a
member of various bands and a session musician. He played a
violin part on the recording by the Bluebells of the song “Young at
Heart” in 1984. He was paid £75. Robert Hodgens of the
Bluebells and his girlfriend Siobhan Fahey, then a member of
Bananarama, were credited as the writers of “Young at Heart”.
The song was a hit in 1984 and repeated its success in 1993 when it
was used in a Volkswagen commercial.
Bobby Valentino maintained that he had composed the violin
part. Robert Hodgens disagreed.
Having decided not to assert a claim in 1984 Bobby Valentino
changed his mind in 1993 and told Robert Hodgens that he would be
making a claim. Proceedings were eventually commenced in
1999.
Christopher Floyd QC came to the conclusion, contrary to a
vigorous defence by Robert Hodgens, that Bobby Valentino had
composed the violin part. The judge then had to consider
whether this made Bobby Valentino a joint author of “Young at
Heart”.
The requirements for joint authorship are (i) that there must be
collaboration in the creation of new musical work, (ii) there must
be a “significant and original” contribution from each joint author
and (iii) the contributions from each author must not be
separate. The judge was satisfied that all requirements were
present.
He also dismissed the argument that Bobby Valentino should not
be allowed to raise his claim at such a late stage. He found
that Bobby Valentino had granted an implied licence, royalty free
for the period 1984-1993 but was entitled to give Mr Hodgens
notice, as he had done in 1993, that this licence was revoked and
that in future he would claim a share of royalties.
Had Bobby Valentino come before Mr Justice Park who decided the
Spandau Ballet case he might well have failed. Mr Justice
Park frankly acknowledged his lack of musical expertise. Some
rather dubious guidance from various witnesses led him to try to
draw a distinction between composing music and performing it.
Given that most modern popular music is composed by playing, this
was both confusing and unhelpful.
Christopher Floyd QC on the other hand confidently dealt with
the musical issues. Whether this is due to a youth misspent
jamming in dingy rehearsal rooms or to years spent singing in the
local church choir remains unknown.
Where the main songwriters decide that a backing musician’s
contribution does not merit a share of the music copyright it
should be possible to head off claims by obtaining appropriate
clearance documentation. This takes some care. Session
players with their own publishing deals will not own the copyrights
in musical works which they compose and therefore they may not be
in a position to sign them away.
Dominic Free
17 July 2002
133
e-bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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