A Whiter Shade of Joint Authorship

One of my favorite of all blogs is the UK IPKat, founded by Jeremy Phillips and Ilanah Simon in June 2003. It covers copyright, patent, trade mark and privacy/confidentiality issues “from a mainly UK and European perspective.” Every time I read it, which is every day, I am humiliated: the writing is always witty and highly informative, the blog’s use of visual images is amazingly creative and it is frequently populated with extremely helpful links. This is the crème de la crème.

Yesterday, I came across a report in it of an opinion by Justice Blackburne of England’s High Court in a copyright suit brought by Matthew Fisher, former Hammond organist of the British band Procol Harum, whose 1967 “A Whiter Shade of Pale” I remember well. There are two reasons I remember it; first, Fisher’s organ work; second, I could never figure out what the lyrics meant. I am not alone in this inability, but surprisingly efforts by some of us on this side of the Great Pond to understand them (efforts I confess I never undertook), have annoyed Mr. Fisher. In an March 25, 2000 interview with him on the occasion of Claes Johansen’s biography of the group, he made this statement:

"I don't know what they mean. It's never bothered me that I don't know what they mean. This is what I find rather hard, that, especially in America, people are terribly hung up about lyrics and they've got to know what they mean, and they say, "I know, I've figured out what these lyrics mean." I don't give a damn what they mean. You know, they sound great… that's all they have to do."

For those who want to read the lyrics and further annoy Mr. Fisher, here is a link to them. The song remains quite popular, and it has its own wikipedia entry, which quite wonderfully was updated the same day to take into account the opinion, one of the features that endears Wikipedia to me. (The entry also discusses alleged similarities to works of Bach).

Here is a link to a BBC story about the opinion. Within the story click on, underneath the picture of Fisher, the button that says “Watch the song performed.” That takes you to a filmed report that includes an interview with Fisher and clips of original performances of the song.

Mr. Fisher’s dispute with his bandmates Gary Brooker and Keith Reid turned on Fisher’s claim that he should be regarded as a co-author of the composition, and as such entitled to a percentage of the royalties. The law in the U.K. on joint authorship is quite different from that in the U.S. In the U.S., joint authors own an undivided interest in the whole according to the number of co-authors: two own 50%, three 33 1/3%, etc. This is without regard to the respective qualitative or quantitative contributions: with two co-authors each own a 50% interest even if one contributed only 10% to the work. Because of this, one would think that the threshold for being a joint author would be high, but it really isn’t, aside from having to contribute expression and having an intent to be a joint author.

In the U.K., however, not only is the contribution threshold higher, but the consequences are different too. As set out in the Spandau Ballet case, Hadley v. Kemp, [1999] E.M.L.R. 589, it is required that the contribution must have been original and “significant,” “the right kind of “skill and labour,” “significant and skillful.” (A recent 80 plus page UK opinion on claims by former members of Bob Marley and the Wailers provides a fascinating account of these issues for many of the group’s most famous songs, Barrett v. Universal-Island Records Ltd., [2006] EWHC 1009 (Ch.)(Lewison, J.)). Once one meets this threshold, as Fisher was held to have done, Justice Blackburne – a music expert in his own right before being called to the bar and bench– stating: “I find that the organ solo is a distinctive and significant contribution to the overall composition and, quite obviously, the product of skill and labour on the part of the person who created it,"), the proportional ownership is based on the extent of the contribution not the number of authors, Fisher being awarded 40%.

In the U.S., had he won, he would have received a mathematical percentage based on the number of composers (that might not have been the same as the number of band members; for instance, if Lennon and McCartney wrote a song, they would each be 50% owners, even though the Beatles as a group had four members; for the sound recording of the song, however, all four would have an 25% interest, reduced proportionally by the producer's share, e.g. George Martin or the label. Many bands today exist as a juridical entity, resulting in perhaps only two "authors" of the sound recording, the group as a single performer and the producer, again likely a juridical entity).

Another difference between the two countries’ laws (and those IPKittens can correct me if I am wrong), is that in the U.K., joint authors cannot license a work without the others’ permission, whereas in the U.S., joint authors can unilaterally license the work on a non-exclusive basis.

But the biggest difference is that in the U.S., Fisher's case would have been dismissed at the outset on statute of limitations grounds; the song was, after all, written and performed and credit taken in 1967. This point is illustrated in an opinion issued by the First Circuit just six days ago, Santa-Rosa v. Combo Records, 2006 WL 3691613 (1ST Cir. December 15, 2006):

"17 U.S.C. § 507(b) provides that “[n]o civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” A claim accrues when “the plaintiff ‘knows or has reason to know of the act which is the basis for the claim.’ “ Rodríguez-García v. Municipality of Caguas, 354 F.3d 91, 96-97 (1st Cir.2004) (quoting Rodríguez Nárvaez v. Nazario, 895 F.2d 38, 41 n. 5 (1st Cir.1990)). Thus, a claim for declaratory judgment of ownership accrues when the plaintiff “knew of the alleged grounds for the [ownership] claim.” Margo v. Weiss, 213 F.3d 55, 60-61 (2d Cir .2000); see also Merchant v. Levy, 92 F.3d 51, 56 (2d Cir.1996)(“[N]o ··· uncertainty exists as to co-ownership rights based on co-authorship. A co-author knows that he or she jointly created a work from the moment of its creation.”). It goes without saying that Santa Rosa was present when his performances were recorded by Combo Records, and thus knew from the moment that each recording was created that he had a potential claim for ownership of it. Thus, there is little question that Santa Rosa's claims for co-ownership accrued as soon as he finished recording each album.

Santa Rosa points to the Ninth Circuit's holding in Zuill v. Shanahan that a claim for a declaratory judgment would not accrue until a “plain and express repudiation of co-ownership is communicated to the claimant.” 80 F.3d 1366, 1369 (9th Cir.1996). Even applying this test for accrual of a claim, we cannot think of a more plain and express repudiation of co-ownership than the fact that Combo openly, and quite notoriously, sold Santa Rosa's records without providing payment to him: according to documents provided by Santa Rosa, at least 1,140 of the recordings in dispute were sold during the six month period between January and June of 2000, almost four years before Santa Rosa filed suit in May 2004. Likewise, it is hard to believe that a singer of Santa Rosa's stature would have been unaware that Combo Records was selling his recordings and thus claiming ownership over them until three years before this action was commenced.

Because we conclude that Santa Rosa had reason to know of his claim of ownership over the recordings soon after they were created (which was well over three years before Santa Rosa filed suit against Combo), we agree with the district court that Santa Rosa's declaratory judgment action is time barred by 17 U.S.C. § 507(b)."

In Mr. Fisher's case there was an estoppel agreement, which Justice Blackburne rejected.