Music and Entertainment Law: Music Contracts - Editions Musicales Alpha S.A.R.L. v Universal Music Publishing Ltd and Others

Mungo Jerry live at Zürisee-Festival in Switzerland 2013, Erlenbach
Creative Commons Attribution-Share Alike 3.0 Unported licence.
Source: Wikipedia

















IPEC (His Honour Judge Hacon) Editions Musicales Alpha S.A.R.L. v Universal Music Publishing Ltd and Others [2017] EWHC 1058 (IPEC) (10 May 2017)

This case, which came before His Honour Judge Hacon on 23 Feb 2017, shows how copyright comes into being, how it is assigned and how much care should be taken when drawing up agreements for its assignment, particularly when settling disputes over ownership.

The story began in 1966 when Jacques Dutronc recorded a song entitled Et moi, et moi, et moi which reached number 2 in the French charts. Dutronc had composed the music while Jacques Lanzmann wrote the words. Because Britain and France were and remain parties to the Berne Convention, copyright subsisted automatically in those works in the United Kingdom by virtue of s.2  of the Copyright Act 1956.  Messieurs Dutronc and Lanzmann became first owners of those copyrights pursuant to s.4 (1). The 1956 Act has been repealed and replaced by the Copyright, Designs and Patents Act 1988 but the law remains substantially the same.

S.2 (5) (f) of the 1956 Act prohibited anyone in the UK from translating Et moi, et moi, et moi into English without Monsieur Lanzmann's permission since a translation would have been an adaptation of the work. However, it did not stop anyone from writing words to be sung to Dutronc's tune though they could only have been performed in public with Monsieur Dutronc's permission as he owned the copyright in the music.

Dutronc's record was played at a party given by Peter Sellers sometime in the early 1970s which was attended by Ray Dorset, the lead singer and songwriter of the band Mungo Jerry.  He decided to make his own version. He wrote his own words, adapted the music and recorded it with his band on one of the Pye labels under the title Alright, Alright, Alright. Unfortunately, it did not occur to Mr Dorset, his agent or anyone at Pye to seek Monsieur Dutronc's licence for the recording.  Consequently, Mungo Jerry infringed Monsieur Dutronc's copyright in the music.

Editions Musicales Alpha SARL("EMA") acquired the copyrights in the words and music from Messieurs Lanzmann and Dutronc.  Its executives heard Muno Jerry's recording and complained to Pye of the infringement. A meeting was held in Paris on 29 May 1973 which was attended by representatives of EMA and Pye Records and Mr Dorset's manager, record producer and manager.  No lawyers appear to have been present which probably explains the curious settlement. The copyrights in Alright, Alright, Alright were assigned to EMA. Monsieur Lanzmann was identified as the co-author of Alright, Aright, Alright even though he had nothing to do with the English lyrics together with one "Joe Strange" which appears to have been an alias for Mr Dorset. The parties agreed that at least some of the royalties should go to Mr Strange. Even though he appears to have got some of the royalties to which he was entitled, it goes without saying that this was not a satisfactory agreement from Mr  Dorset's point of view.

By the early 1990s, Mr Dorset decided that he had not received all the moneys to which he felt entitled and decided to do something about it.  However, instead of consulting lawyers he turned to his old publisher, Eliot Cohen, who suggested persuading the Performing Rights Society and the Mechanical Copyright Protection Society to register Mr Dorset as the sole composer and songwriter of Alright, Alright, Alright in place of EMA.  They presented a document bearing both of their signatures which purported to be dated before Alright, Alight, Alright was written and Mr Cohen's company was incorporated.  Nevertheless, both collecting societies accepted that document and substituted Mr Dorset as the composer and songwriter in place of EMA.

In due course, Mr Dorset fell out with Mr Cohen.  Their differences were resolved in 2008 when Mr Dorset assigned his copyrights to himself and Mr Cohen's company Associated Music International Ltd. ("AMI"). Mr Dorset and AMI subsequently granted exclusive licences for Mr Dorset's songs to Universal Music Publishing Ltd ("Universal") and Sony/ATV Music Publishing Ltd ("Sony").

In 2010 EMA discovered that Sony had licensed BBC Films to use Mr Dorset's music in West is West for which it had not received a royalty.  It carried out further investigations and found that other licences have been granted by Sony and Universal.  EMA sued Universal, Sony, AMI, Mr Dorset and a company jointly owned by Mr Dorset and Mr  Cohen called In the Summertime Ltd.

In response to the claim, Mr Dorset pleaded that he had written:

".............. Alright, that it was not copied from Et Moi, that he had not signed and was not party to the 1973 Assignment by which the copyright in Alright had purportedly been assigned to EMA and that therefore EMA did not own the copyright in Alright. By way of an alternative argument, Mr Dorset's Defence stated that if he had been a party to the 1973 Assignment, he had not received the royalties due to him under that agreement and he counterclaimed for the sums due."

AMI pleaded that it had no direct knowledge of who had written Alright and had relied on Mr Dorset's representations. Accordingly, it did not admit that EMA owned the copyright in Alright.  AMI also launched a CPR Part 20 claim against Mr Dorset seeking an indemnity or contribution from him should it find itself liable to EMA for any reason.

Shortly before trial, Mr Dorset settled the claim that had been brought against him by EMA. He acknowledged that he had written only the lyrics to Alright, Alright, Alright and not the music and admitted that his copyrights in those lyrics had been validly assigned to EMA in 1973 by his agent, that he had wrongly registered himself as the copyright owner with the PRS and MCPS and that he had infringed EMA's copyright by granting licences to Sony and Universal. In the light of those admissions, the other defendants settled with EMA.  One of the terms of AMI's settlement was that it should pay £33,600 to EMA.

All that remained for Judge Hacon to decide was AMI's Part 20 claim against Mr Dorset.  In its statement of case, AMI alleged misrepresentation, breach of warranty and breach of an implied term to indemnify the company. Mr Dorset argued that Mr Cohen was fully aware of EMA's claim and that if there had been any wrongdoing by Mr Dorset then Mr Cohen was equally involved in it.

The judge held that Mr Dorset had misrepresented and warranted to Mr Cohen that he owned the copyrights in Alright when he knew that his agent had already assigned them to EMA in 1973 and that as a result of the misrepresentation and breach of warranty AMI had incurred a liability to EMA in the sum of £3,600. It had, however, no independent claim for damages as there would have been no assignment and hence no royalties had there been no misrepresentation or breach of warranty.

Should anyone wish to discuss this case or copyright generally, he or she should call me on +44 (0)20 7404 5252 during office hours or send me a message on my contact form.

Further Reading 



Date
Author
Title
Publication
08.08.2016
Jane Lambert
NIPC News
28.06.2017
NIPC Law

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