Produced by Kees Kasander, for Kasander Films, and executive produced by Paul Trijbits (Ruby Films) and Christine Langan and David M Thompson for BBC Films, Fish Tank was shot entirely on location in the UK. The film was financed by BBC Films, the UK Film Council, Limelight and Soho Images.

Lee & Thompson advised Kasander Films and ContentFilm International and also represents Ruby Films.

JLS took home two awards, for Best Breakthrough Act and Best Single, while the Spice Girls won Best Moment in Brits History with their 1997 performances of Wannabe and Who Do You Think You Are.

Lee & Thompson would like to congratulate both the boys and the girls on their continuing success.

The full text of the speech is reproduced below.

MIDEM UK LEGAL UPDATE SPEECH 2010

I am going to give you a quick overview of what’s happened in the legal arena in the UK in 2009 and then I am going to focus on the most important case of the year.

So anything new on the statute books?  Well, not yet, but the Digital Economy Bill is wending its painful way through Parliament, with the House of Lords currently discussing as many as 300 amendments.  The most contentious provisions are about how to deal with online copyright infringement by peer to peer file sharers.  No ‘three strikes’ policy for the UK but instead what’s proposed is for ISPs to have to send notifications to subscribers alleged to be infringing copyright and to record the number of notifications which each subscriber is sent.  This information is then to be passed back to rights holders on a no names basis who can then apply to Court to get the subscribers’ names and addresses so that they can take legal action.  If this does not reduce piracy by 70% then the Secretary of State will have the power to instruct the regulator OFCOM to introduce technical measures against infringers, with suspension of their internet connection a possible last resort.  Note suspension rather than permanent disconnection.  As the bill continues to be debated in parliament all sides are on tenterhooks as to whether it will actually make it into law before we have a general election this Spring.

At a European level, the question of the extension of the duration of sound recording copyright is being keenly watched from the UK as with the current 50 year term, for example, early Beatles recordings will shortly start to fall out of copyright, and it looks like the term will be increased to 70 years shortly.

Back to file sharing, and the UK saw its first criminal prosecution against the host of a BitTorrent file-sharing community.  This was about Oink, the invite-only file-sharing community set up in 2004 by the then 20 year old computer programmer Alan Ellis which was closed down in 2007 following an investigation by British and Dutch Police working with UK and global record label trade bodies the BPI and the IFPI.  Users of the service were invited to make donations ostensibly to cover server hosting expenses and with a view to purchasing a server, and by the time of its closure in 2007 these amounted to about £180,000 which apparently Ellis had not spent but had just left sitting in an account.  Four users had pleaded guilty to copyright infringement charges in 2008 but Ellis was prosecuted for the more serious charge of conspiracy to defraud which could carry a jail sentence.  However, much to the trade bodies’ annoyance, the jury found Ellis not guilty on the basis of his defence that he had set up the service as an exercise in computer programming, that he had not been aware that the service, as opposed to its users, could be guilty of copyright infringement, and that he had not intended to defraud anyone.  There appears to be a general consensus that a claim for authorising copyright infringement as opposed to conspiracy to defraud would have been successful and there is now talk of that being run against him as a civil claim.

As to other disputes, we had the spat between PRS and YouTube which briefly led to premium UK video content being taken off the site until a deal was done, the details of which remain confidential.

And how is the UK music industry bearing up in the global recession?  Well the live industry continues to thrive, with London’s O2 arena proving the world’s most popular music venue for the second year running, the music publishing industry is bearing up well and even the record industry is not suffering as much as had been feared with album sales only down 3.5% at 129 million and with the silver lining of the revival of the singles market to the point of overtaking album sales for the first time since the heyday of the single in 1967.

Which brings me nicely on to my case as 1967 was the year Procol Harum’s “A Whiter Shade of Pale” was released.  Yes that’s 43 years ago.  How can that possibly be relevant at a legal conference in 2010 I hear you ask. Well the fact that, according to the collection society PPL, it is the UK’s most performed recording ever might have something to do with it, and sure enough issues as to who owns the song were up before the highest Court in the land last July, the House of Lords, since re-branded the Supreme Court by the way – no idea where they got that name.  To recap, this was a claim against the lead singer and writer Gary Brooker and the publisher and record company Essex Music by the organist Matthew Fisher for a share of the copyright in the song by virtue of his writing the organ part.  The claim started in 2005 when the song was 38 years old and it is that delay which is the principal point of legal interest as your instinctive reaction is to say “surely he’s left it too late”.

The delay was raised in the defence in two ways:-

Firstly, that it was too late to have a fair trial, the witnesses won’t remember and some of them are dead, but the dispute wasn’t really about who wrote what but whether the organ part was sufficient to qualify for a copyright interest, so that didn’t work.

Secondly, it was said that the delay itself should deprive Fisher of a remedy and that was the key issue as it played out.

As I reported here 2 years ago, at first instance the Judge found that Fisher’s organ part merited a 40% share of the music, and so a 20% share of the song.  The UK limitation period for damages for copyright infringement is 6 years so Fisher was claiming damages for the previous 6 years’ exploitation of the song, but the Judge used his discretion to refuse Fisher any damages for the past because of his delay.  But for the future, the Judge made declarations giving Fisher 20% ownership of the song going forward and a 20% entitlement to future income. So at that point the delay was held to be enough to deny Fisher any damages for the past but not his claim to ownership for the future.  For that to have happened the Defendants would have had to show that the delay had caused them some detriment, which of course they couldn’t because they had been receiving more royalties than they should have done for the 38 years.

In the Court of Appeal, the Judges were more troubled by the delay and, while they recognised they could not overturn the lower court’s finding of fact that Fisher was a 20% author of the song, they decided they had a discretion to overturn the ownership declaration because of the delay and promptly did so.  This left a mess, with Fisher acknowledged as part-author but with no claim to any ownership or royalty entitlement.  Quite how PRS was supposed to deal with registration of the parties’ interests in the work at that stage is anyone’s guess.

Then came the House of Lords to put matters right, stressing that there is nothing so sacred in law as a right to ownership of property, be that real property or intellectual property, and such a right cannot be extinguished by delay alone in the absence of the delay causing some form of detriment to the Defendant. So the House of Lords restored Fisher’s 20% ownership for the future.  The press then proceeded to cause considerable confusion by reporting the decision as a finding that there is no limitation period on copyright claims in the UK.  The actual position, and this case did nothing to change it, is that there is a 6 year limitation period for claims to damages for copyright infringement and there is no limitation period for claims to ownership of copyright.  Detriment caused to a Defendant by a Claimant’s delay can prevent a claim to ownership of copyright succeeding, but what this case highlighted is that it will be hard for a Defendant to prove detriment when he has been receiving more royalties than he should have during the period of delay. So it may just be worth another look at those old copyright ownership claims you had assumed were past their sell by dates.

As in all good screenplays, there was however a final twist in the tale for Fisher. One of the arguments raised by the Defendants before the House of Lords was that a clause in the recording agreement which the band including Fisher had signed with Essex Music amounted to a licence for Essex and its licensees to exploit the song in the form of the band’s recording of it. Somewhat unhelpfully, but because the point hadn’t been fully argued before them, the House of Lords made no definitive finding on the point but said that the clause “may” amount to a licence. If it did, while Fisher would still get his 20% of royalties going forward on the 770 cover versions recorded of the song, he would not do so on Procol Harum’s own recording of the song, which, I repeat, has been the UK’s most performed recording ever. So it’s not over yet, and I look forward to bringing you the next instalment in a couple of years time.

© 2010 Gordon Williams

Best film: Fish Tank – Andrea Arnold’s second feature, winner of the Jury Prize at Cannes 2009 and awards for best director and best newcomer (Katie Jarvis) at the British Independent Film Awards 2009. Produced by Kees Kasander, for Kasander Films, and executive produced by Paul Trijbits (Ruby Films) and Christine Langan and David M Thompson for BBC Films, Fish Tank was shot entirely on location in the UK. The film was financed by BBC Films, the UK Film Council, Limelight and Soho Images. Lee & Thompson advised Kasander Films and ContentFilm International and also represents Ruby Films.

Best actor: Andy Serkis – Sex & Drugs & Rock & Roll – telling the story of Ian Dury who became one of the founders of the punk-rock scene in 1970’s Britain and directed by Mat Whitecross. Lee & Thompson advised the financier Lip Sync and the sales agent Odyssey Entertainment in respect of their involvement in the production.

Best actress: Anne-Marie Duff – Nowhere Boy – Lee & Thompson advised financiers North West Vision + Media and Lip Sync in respect of their investments in the production of Sam Taylor-Wood’s feature film debut, Nowhere Boy, based on the early years of John Lennon, starring Aaron Johnson and Kristin Scott Thomas.

Best screenplay: Jesse Armstrong/Simon Blackwell/Armando Iannucci/Tony Roche – In the Loop – Lee & Thompson advised the distributor Optimum Releasing.

John Terry’s lawyers, Schillings, applied to the Court under Article 8 of the European Convention on Human Rights, arguing that publication of the allegations would infringe the right to privacy of certain “interested persons”. The application did not identify Terry as the applicant or any party as respondent and no parties were informed of it in advance.

Mr Justice Tugendhat ruled that a super-injunction was neither necessary nor proportionate in the circumstances, having regard to the likely effect that would be caused to Terry’s private life if the allegations were to become public. His lawyers came in for particular criticism for their failure to inform the News of the World of the application, given that they knew that the paper was intending to run the story. The paper was therefore prevented from challenging the application, unfairly so in the opinion of the judge.

In rejecting his lawyers’ arguments Mr Justice Tugendhat concluded that the application had been made not to protect Terry’s wife and family, but in an attempt to prevent damage being caused to Terry’s lucrative sponsorship deals, for which an appropriate remedy lay in damages rather than prior restraint.

The matter has re-opened the debate on the use of super-injunctions leading to the Ministry of Justice confirming that it was investigating measures to limit their use. The tabloid press, unsurprisingly, has been quick to hail the judgment as a milestone in their fight against the UK judiciary’s comparatively strict application of European privacy legislation, however this decision in no way changes the law and injunctive relief remains available to protect privacy in appropriate circumstances.

This does not, therefore, sound a death knell for super-injunctions, though it may well lead to a different approach from those who seek to benefit from them.

To donate please follow this link to Andrew’s Just Giving page http://www.justgiving.co.uk/andrew-thompson2

Both charities carry out fantastic work in support of disadvantaged children (find out more at www.nordoff-robbins.org.uk and www.childline.org.uk).

All money raised will be divided equally between Nordoff Robbins and Childline and every penny raised will go direct to the charities. Andrew aims to raise a minimum of £10,000 and Lee & Thompson is proud to be his principal sponsor. Every donation, however small, will make a difference and will be greatly appreciated.

Lee & Thompson not only undertook the legal work for the production, but also undertook an enhanced role as executive producer in helping to set up the finance of the Film with producer Kris Thykier of PeaPie Films.

Lee & Thompson are proud to be involved with the production, which is the second Gary Young scripted Film the firm has been involved with following “The Tournament” starring Ving Rhames, Bobby Carlyle, Liam Cunningham and Kelly Hu on behalf of Mann Made Productions which was subsequently acquired by the Green brothers’ distribution company Entertainment in the UK and The Weinstein Company for all other English speaking territories.

Lee & Thompson are proud to have represented JLS since their X Factor days and congratulate the band on their latest success. JLS have now achieved successive number ones for both their single and album debuts.

Reading out a statement before Mr Justice Eady in Mike Brookes’ absence, Group head Gordon Williams told the Court that Now Magazine had suggested that his client may have been at fault for two accidents suffered by Harvey, Katie Price’s disabled son by footballer Dwight Yorke. “As a result, Mr Andre was said to be lying in portraying himself as a loving father and husband” the Court heard.

Mr Andre, a long-standing client of Lee & Thompson, said that he was “pleased” Now Magazine had accepted that the allegations made were untrue.

HOUSE OF LORDS JUDGMENT

On 30 July the House of Lords’ judgment in the well publicised “A Whiter Shade of Pale” case, brought by the former Procol Harum organist Matthew Fisher against the band’s singer Gary Brooker and its publisher Onward Music, was handed down. The Lords saw fit to rule in Fisher’s favour and allow his appeal, in the process restoring the declarations that were made at first instance by the original trial judge, which the Court of Appeal had subsequently set aside.

Background to the Case

The song’s music in its original form was composed in 1967 by Gary Brooker, the band’s singer, using lyrics written by the band’s manager, Keith Reid. The day after coming up with the song, Mr Brooker and Mr Reid signed a publishing deal with Essex Music under which they assigned to Essex all copyright in the words and music. Fisher then joined the group as an organist and made some additions to the music, including the now famous organ intro that formed the basis of his claim. The song was then recorded and released by Decca as a single under licence from Essex, becoming an instant hit. In May 1967 Procol Harum, with Fisher now a permanent member, entered into a recording deal with Essex and the song went on to enjoy worldwide success, being covered over 750 times.

It was to be more than 38 years before Fisher formally raised a claim over the copyright in the work with Essex and Brooker. Those claims were rebuffed and proceedings were issued on 31 May 2005. A decision by the Judge at first instance was broadly in Fisher’s favour. Blackburne J declared 1) Fisher was a co-author of the song; 2) he was joint-owner of its copyright with a share of 40%; and 3) the defendants’ licence to exploit the song was revoked as of the date proceedings were issued. That decision was overturned however by the Court of Appeal. They considered that Fisher had waited for too long to bring his claim and that it was unconscionable for Fisher to now be able to revoke the licence. They therefore set aside the second and third of the trial judges declarations. Fisher appealed to the House of Lords.

Issues before the Lords

Three issues survived to be decided by the Lords.

1. Was there an implied assignment from Fisher to Essex?

Brooker and Onward had argued that because Essex had taken an absolute assignment of copyright in both the musical and lyrical elements of the song in its original form, with all members of the band intending that Essex should exploit the song (as was developed for the first recording which Decca had released in May 1967), then it must have been intended by everybody concerned, including Fisher, that Essex would be the sole owner of copyright in the work.

The Lords rejected this argument for a number of reasons.  They decided that for this argument to succeed it would have to be advanced on the basis that Fisher had impliedly assigned his portion of the copyright to Essex.  That would require Brooker et al to show two things; firstly, that at the time of the alleged assignment it would have been obvious to Fisher that his interest was being assigned and, secondly, that the commercial relationship between the parties could not have operated without such an assignment.  The Lords thought that the argument faced “a number of insurmountable problems” and the requirements had not been sufficiently established.

2. Did the recording contract contain an assignment of Fisher’s share of copyright?

The Lords’ interpretation of the recording contract was that it had the effect of enabling Essex to exploit the first recording free from any rights which the band members had in the sound recording itself.  Brooker’s camp had argued that the relevant clauses in the contract had the effect of assigning to Essex any copyright interests in the work owned by any members of the band.  This argument was rejected at first instance by the trial judge who concluded that the recording contract did not cover copyright in the music.  Instead it merely gave to Essex the right to exploit the original sound recording copyright.  The Lords agreed.

They did, however, provide a small reprieve to Brooker and Onward by opining that the terms of the recording agreement may have the effect of depriving Fisher of any royalties he might otherwise seek as a result of the exploitation of the work, insofar as it is through the medium of the first recording.  However, as this was a side issue to the case before them they made no firm finding on the point. It is not an insignificant consolation to Brooker and Onward though, given that it is the original recording which is most widely exploited.

3. Had Fisher’s delay resulted in him losing his ability to make his claim?

Brooker and Onward had relied on the equitable doctrines of laches, estoppel and acquiescence to argue that the passage of time since the song was written precluded Fisher from now claiming a portion of the copyright.  Whilst those doctrines have all evolved independently of each other they operate to similar effect.  One element common to all, in the Lords’ opinion, was the need for some form of unconscionable conduct by Fisher on which reliance had been placed by Brooker and Onward to their ultimate detriment.  Again, the Law Lords rejected these arguments and held that the passage of time had actually significantly benefited Brooker and Onward and they had failed to prove that any prejudice they had suffered outweighed the financial benefit they had enjoyed, indeed quite the opposite.

In the Lords’ opinion, the Court of Appeal had relied too heavily on these equitable principles as a route to their decision to the exclusion of a strict interpretation of the law.  The Court of Appeal had considered it unfair for Fisher to now have the ability going forward to be able to injunct Brooker and Onward from exploitation of the work and to an extent had used this unfairness as a reason for them to arrive at their reversal of the trial judge’s second and third declarations.  Whilst not an uncommon method of decision making amongst the judiciary it was still, as Lord Neuberger put it, a case of “the tail wagging the dog”.

The Lords’ pointed out that any application for injunctive relief in the future would still have to be dealt with on its merits and, if the court was satisfied that it would be oppressive to grant an injunction in the particular circumstances, for instance because of prejudicial delay, it could still refuse an injunction to restrain the infringement and leave Fisher with both his 40% share of the copyright and a remedy in damages.

There was one particular part of the judgment which was heavily quoted by the press, to some considerable alarm amongst the entertainment industry, namely the Lords’ confirmation that under UK law the passage of time cannot of itself undermine claims such as those raised by Fisher in this case.  Of course, the Lords were referring to the duration of copyright as an outright property right rather than the erosion of any limitation on the right to a remedy for its infringement.

A declaration of ownership may be made at any time during the period in which the copyright in question subsists. Copyright infringement however can (and often does) continue over long periods of time, with each restricted act, such as an unauthorised exploitation, providing a new cause of action from which time starts running. A remedy for infringement of copyright may only be granted if a claim is made within 6 years (12 in the case of fraud) of the restricted act complained of having occurred. So, even if the infringement has been ongoing for over 6 years, you can (usually) obtain payment of damages only for the last 6 years.

This principle is of course well established – nothing has changed as a result of this judgment. The position simply reflects current legislation, namely that there is no statutory equivalent in intellectual property matters similar to the doctrine of adverse possession in relation to real property.

Conclusion

Although reported as a resounding victory for Fisher, which allows him to participate in future royalty streams from new versions of the song as well as performance income, the interpretation by the House of Lords of the recording agreement as granting a free licence to Essex to exploit the original recording, together with the lower Court’s decision that until issuing proceedings in 2005 Fisher had granted a free licence for exploitation of the work in any event,  has deprived Fisher of a significant chunk of both past and future publishing royalties.  Ironically, the coverage generated by Fisher’s claim has resulted in a generous sales spike of the original recording, none of which it appears Fisher will be entitled to.

Whilst this decision may result in a raft of session musicians and side men poring over the small print of their old contracts, they will all have to overcome similar hurdles as existed prior to this judgment in order to succeed in proving their claims.  Of course, Fisher has maintained all along that he was only ever concerned with obtaining a rightful credit for his creativity and it was ultimately left to a surprisingly swinging Baroness Hale to provide it:

“As one of those people who do remember the sixties, I am glad that the author of that memorable organ part has at last achieved the recognition he deserves”.

Mark Stafford

Lee & Thompson