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Copyright

Q: Co-author copyright contracts

I am the co-author of a recorded song performed on a Decca 45, in a long-running West End review and often broadcast worldwide. The publishers refuse any royalty, saying they have no records. I am not a Performing Right Society member, as I have not had a qualifying number of songs published. Do I have a remedy?

A: Firstly, as to co-authorship, if the separate contributions of the individual co-authors can be separately identified, then each is the original copyright owner of his own particular contribution. However, if the work is produced by the collaboration of two or more authors in which the contribution of each is not distinct from that of the other or others, then it is a work of joint authorship and all dealings with the copyright in it must be unanimous, in which case each joint copyright owner will be liable to the other or others for any unilateral dealing.

A song (ie both music and lyric) is a work protected by copyright and cannot be published without the consent of the copyright owner.

If Decca published your song and if, as you say, it has been performed in a long-running West End review and has often been broadcast worldwide, those various methods of exploitation could only have occurred pursuant to an agreement of some kind with you and the other authors, or those claiming to be the authors or their successors in title. There is no point in my seeking to speculate on the nature and content of such agreement or agreements but one or more such agreements there must have been and the contents of them will determine current ownership of copyright and entitlement to royalties. You may, for all I know, have assigned your rights in the song and divested yourself of any continuing entitlement to royalties. Without a detailed contractual history I simply cannot give you a definitive answer to your question.

What I can say, however, is that you do not have to be a member of the PRS or Mechanical Copyright Protection Society or any other collection society in order to be entitled to royalties from exploitation of the song. If, for example, you were the sole author/composer of a song which has never been published, any exploitation of it without your consent would be an infringement of copyright for which you could seek for a restraining order (injunction) and damages. Usually, in such circumstances, the author/composer would enter into an agreement with a music publisher or with one or more collection societies such as PRS, MCPS, Phonographic Performance Limited or whoever but there is no legal obligation to do so and he could, if so inclined, seek to administer the rights in the song himself, although he would find it very difficult to police.

I suggest you begin pursuit of your claim by (1) scrutinising carefully the contracts with Decca, the West End review producer and the broadcaster, or such of them as you can find and (2) asking your co-author or authors what they are doing about claiming royalties in respect of the song and (3) asking the music publishers who have refused you a royalty, from whom they acquired their rights in the song and on what terms. Armed with that information you should then seek further legal advice as to how to proceed and on whether indeed you have a claim at all.

All this assumes, of course, that your claim to be a co-author of the song is not disputed. If it is, then that is an entirely separate matter to be resolved by consideration of the evidence, if any, of your alleged co-authorship.

It is also pertinent to enquire whether you received any royalties from Decca or from the producer of the West End review or the broadcaster and, if not, then why not and did you do anything about it at the time. The fact that you refer to 'publishers' indicates that there is very likely a music publishing agreement with someone, possibly with you and your co-authors. If, however, they are suggesting that they have no record of your interest, then that seems to imply that they have an agreement with someone else who may dispute your entitlement to co-authorship.
I am afraid there are too many queries arising out of your question to enable me to give you a definitive answer without a lot more information.

A few words here about mechanical royalties may be appropriate. These are royalties paid on record sales by manufacturers of records to the copyright owner of a musical composition which has been recorded. Most music publishers belong to collection societies such as MCPS but there is no obligation on a composer to enter into a music publishing agreement. If a composer satisfies the minimum requirements for membership he can join MCPS and use its services to collect mechanical royalties on his behalf. If he does not qualify for membership himself, he can appoint a music publisher who is a member and thereby get the benefit of the society's collection facilities indirectly but in that event he will have to share his mechanical royalties with both the society and the publisher, neither of whose services are free. However, this is straying somewhat from the direction of your original question.

First published September 16th 2004