An attempt by members of 80s pop sensation Duran Duran to reclaim the publishing rights to some of their most famous songs has been thwarted by the High Court. The band had hoped to terminate agreements which they had signed at the beginning of their musical careers with music publisher Gloucester Place Music (then called Tritec Music and now owned by Sony/ATV group).
The rights that may exist in sound recordings are distinct from the rights in their underlying compositions (the words and music). Traditionally, songwriters transferred their rights in their compositions to publishing companies, which then exploited those compositions in order to generate revenue for both the company and the songwriter. The exploitation of sound recordings that embodied those compositions was traditionally the preserve of record companies.
This case relates to the control of rights in the compositions of some of Duran Duran’s best-known songs, including the Bond theme ‘A View to a Kill’. The band had hoped to rely on US copyright law, which allows songwriters to reclaim their copyright in the US from publishing companies after 35 years, subject to the serving of an advance notice within specified time limits. This law was introduced as part of the US Copyright Act 1976, as a way to rebalance the often unequal bargaining position which many upcoming artists find themselves in.
In 2014, with the 35 year point approaching, the band served notices as required by Section 203 of the Copyright Act.
Although the band believed that serving such notices was simply a formality, Gloucester Place Music took a different view. The company sought a determination from the English High Court that these notices were an attempt to wrongly terminate the agreements in question, and as such represented a breach of contract by the band.
The publishing contracts that the band had entered into were governed by English law, and conferred exclusive jurisdiction on the courts of England. The agreements contained a worldwide assignment of copyright in works written or composed by the band during the term of the agreement. The judge, Mr Justice Arnold, confirmed that the decision as to whether or not the band had breached the agreements would depend on the correct interpretation of those agreements.
The judge found in favour of Gloucester Place Music. He found that the language of the publishing agreements would have conveyed to a reasonable person that their purpose was to assign the copyrights in the compositions to the company for their full term. This precluded the band members from exercising rights under US law which would have brought aspects of the agreements to an end prior to the expiry date.
Section 203 makes it clear that the right to terminate agreements under it cannot be contracted away. However, the judge found that in this case UK law overrode US law, and so the attempt by the band to terminate the agreements early was indeed a breach of contract.
The ruling will be of interest to other UK songwriters who want to end similar longstanding agreements, and publishing companies that may wish to prevent such early terminations. Whilst the exact content of agreements will vary, it is likely that much the same language appears in publishing agreements from that era.
In his judgement, when referring to the meaning conveyed by the agreements to a “reasonable person”, Arnold J considered such a reasonable person would also have “the relevant background knowledge”. This is an interesting point given that the law was introduced in the US precisely to protect songwriters who did not have knowledge or experience of the music industry or a strong bargaining position.
This case emphasises how important it is for musicians and songwriters to understand the different rights that exist in their intellectual property as well as the different revenue streams that may flow from their creative output. It also highlights the importance of having your publishing agreement or recording contract clearly drafted and well negotiated.
The JMW Intellectual Property team have worked with musicians, songwriters and music businesses, and can assist you in the protection and exploitation of your intellectual property rights. Please do not hesitate to contact us.