Monthly Archives: July 2009

Procol Harum Copyright decision turns Artists Pale?

Copyright in music remains one of the most topical legal issues of our time in the wake of the Digital Britain Report, the music industry losing money at a terrifying pace to online  filesharers and moves to extend the duration of musical copyright beyond 50 years to allow artists such as Cliff Richard to continue making royalties from their earliest work, and it is making headlines again following yesterday’s landmark judgment on the ownership of copyright in one of the most played pop songs of all time – Procol Harum’s “A Whiter Shade Of Pale”.

The song was first released in 1967 to immediate critical and commercial success, has been covered over 800 times and is perhaps best known for its surreal lyrics and signature Hammond Organ melody, which was the major issue in the soon-to-be infamous case of Fisher v Brooker [2009].

The case dealt with a claim brought against Gary Brooker, (Procol Harum’s lead singer and lyricist) by Matthew Fisher, the band’s original keyboard player, who claims that he wrote and was responsible for the main melody of “Pale”, and as such is entitled to a share of its copyright.  This case comes on the last day before the House Of Lords becomes the Supreme Court, and marks the first time that the Lords have been asked to been asked to determine the copyright in a pop song. However, it also makes history in a number of other ways.

Fisher’s case began in 2005, with the High Court originally ruling that he had made a “significant contribution” to “Pale”, and was found to be in fact a 40% joint composer of the song along with Brooker. This mean that he was entitled to a considerable share of the huge amount of royalties generated since its release over 40 years ago.

However, the Court of Appeal overturned this ruling last year on the grounds that it had taken Fisher nearly 40 years to bring his claim to Court, having not taking any action against Brooker in the meantime, who claimed that Fisher was “happy” for his organ solo to be used in the final song.  

Fisher claimed that he had always been told by every solicitor he had consulted in the meantime that he stood no chance of successfully claiming for back royalties on the song. That is, of course, until 2002, when a case involving the Bluebells Hit “Young At Heart” changed musical copyright law by awarding Bobby Valentino (AKA Robert Beckingham), who composed and played its iconic Violin melody, a share in its copyright and an entitlement to a share of the royalties generated by the hugely successful song on the basis that he had made a similar “significant contribution”.

The Lords overturned the Court Of Appeal’s ruling for two reasons – the other members of Procol Harum could not show that they had been prejudiced by Fisher’s failure to bring his case before now (which was a key argument for Brooker) and that even if they had, it would be far outweighed by the financial benefit which they had gained from the royalties generated by the song since its release.

Brooker’s lawyers argued that, if the Lords sided with Fisher, the floodgates would be opened on a huge number of similar claims from musicians who did not believe that they received the songwriting credit which they deserved and that the music industry as a whole would suffer. The Court did not agree.

The case can be looked at in two ways. On the one hand it represents a huge victory for session musicians or former members of bands who claim that they should have received credit as a songwriter on a track which goes on to be a massive hit, such as “Pale”, the most played song in public places of the last 75 years according to recent research by PPL, and on the other it could represent the beginning of a raft of similar cases.

The normal rule is that whoever composes a song becomes the owner of the copyright in it. However, many songs tend to be written in jam sessions with input from more than one musician, and sometimes from session musicians who aren’t members of the band. Fisher eventually left Procul Harum, who have always claimed that he was happy for his distinctive organ riff to be used on the song for no further financial benefit. Fisher sued for a declaration of ownership rather than an injunction or damages, which means that the Court wan not asked to award a huge sum of damages but to ensure that Fisher received royalties in the future.

What’s interesting is that Fisher’s melody was itself inspired by Bach’s Air on a G String, but is still arguably the most recognisable element of the song. Over the past few years, the Courts have dealt with a number of cases where session musicians who are only expected to come into a studio, contribute to a recording and leave after being paid their session fee have successfully claimed a share in the final song’s copyright and have been awarded substantial damages to cover the royalties they would have made had they been credited as a composer when it was released. Ask the remaining members of Pink Floyd about the case of Claire Torry, who is now credited as a co-author of “The Great Gig In The Sky”, an instrumental featuring her free-form vocals from “Dark Side Of The Moon”, one of the most successful Albums of all time, after originally only being paid £30 in the 1970s and claimed a 50% stake in the song’s copyright. That case was settled for an undisclosed sum.

Artists will probably now be looking over their shoulder, especially if the most distinctive parts of their most popular songs were created by session musicians who now feel as if they never got the recognition they deserved. Musical copyright is big business as songs can be sold over a much greater number of formats than at any time over the past 50 years, such as MP3s – Coldplay are currently involved in a case brought by Joe Satriani over the copyright in “Viva La Vida”, and the Verve famously lost pretty much all of the money they ever made on “Bittersweet Symphony” to the Rolling Stones, who came up with the melody line around which the song was based.

What’s really significant about this case is the amount of time which has gone by between the song’s release and this Judgment. In the Bluebells case, only 15 or so years had intervened but Fisher had to wait twice as long, with the Court finding that there were not time limits in English Law in copyright claims. This may mean that some of the 60s and 70s’ most popular songs may be subject to scrutiny, especially as Fisher will now be entitled to 40% of the royalties for “Pale” going forward despite the fact that his melody line made up only a small part of the eventual song.

The lesson for any artist here has to be to sign a contract with any session musicians you use to ensure that you have set out any arrangement on copyright and royalties in the product. The vast majority of modern artists will be well aware of the risks, but we could see a great number of similar cases. An ounce of protection could be worth nearly 40 years of cure.

Google vs The World – Can Search Engines Be Liable For Defamation?

In a landmark decision by Mr Justice Eady, the effective founder of Privacy Law in the UK, the High Court has found that Google cannot be liable for defamatory comments features in articles, forum posts and web pages which appear in its search results.

The Claim was brought against Google’s US and UK businesses by Metropolitan International Schools, as well as the Designtechnica Corporation. Designtechnica operates the “Digital Trends” website, which provides “news, professional reviews and opportunities for public discussion on the latest consumer electronics products, services and trends”, attracting 2 million page views per month.

Many of those visitors post messages on the 14 separate bulletin boards which Digital Trends hosts, and this is where the problem began.

On 25 March 2009, a thread was posted on one of the Digital Trends boards under the title “Train2Game new SCAM for Scheidegger”, suggesting (amongst other things) that Metropolitan International Schools had infringed copyright by copying materials used in their “Train2Game” Courses and that the Courses themselves were a “scam”.

Metropolitan sued Designtechnica on the basis that they published the comments in the first place and Google for further repetition of the comments by “publishing” them in search engine results.

Google’s response claimed that they had no responsibility for comments displayed in their search engines, and ultimately Justice Eady agreed, in a judgment which will make search engines everywhere breathe a little easier.

This is a very important judgment. Internet libel is one of the fastest growing areas of law, and one which can potentially attract large awards of damages given that, due to the international nature of the internet.

Claimants based outside the UK can potentially sue here if their comments can be read in this country and therefore gain higher damages than they would recover in their home Court, based on the Don King case from a few years ago. Whilst not dealing specifically with this point, the Court has taken the opportunity here to restrict the scope of what Claimants in these cases can recover by restricting who they can recover damages from.

The normal rule in libel cases is that a statement must be made that clearly refers to the Claimant, which lowers his reputation in the minds of ordinary respectable people and exposes them to contempt or ridicule and most importantly the statement must be made or published to a third party, as the law won’t allow for damages to be paid on account of arguments or insults between two people. It is the publication element which leads to considerable damages claims, as any person who publishes the libellous statement can be sued. For example, the Journalist who writes the Story, the Paper who publishes it and theoretically the Newsagent who sells the paper could face proceedings.

This is the logic that Metropolitan followed, claiming that by allowing them to appear in search results, Google “published” the libellous comments to the world at large. The more people see a comment, the greater effect it will have upon a reputation and the larger the damages figure is likely to be.

Internet Service Providers (“ISPs”) have had to deal with this argument before in the leading case of Godfrey v Demon Internet, where the Court found that Demon had not removed libellous comments from a website which it hosted and as such was liable for them. This led to the general rule of thumb that ISPs and other Web-Based businesses who facilitate access to the internet should not be held liable if they operate a “Take Down” policy and remove unlawful material as soon as they are notified that it exists. This was later enshrined in European Law.

Here, however, Justice Eady drew an important distinction between an ISP or other website host and a Search Engine – ISPs can take simple and effective measures to take down a website within hours of being notified of unlawful content whereas Search Engines can’t. Google cannot control the search terms which users type in and can’t block specific statements without blocking a huge amount of other sites which may contain the offending comments and thereby cutting out a considerable amount of their business. Given the sheer number of websites which they search, the steps which they would need to take to completely block all of the comments from appearing in results would be disproportionate. Finally, the Judge noted that it is up to users whether or not they choose to click on any particular result and that Google is merely a “facilitator”.

What is important in this case is that Google did block access from their site to the offending commentary, although not quickly enough for Metropolitan.

This is a great result, and a very sensible one, for Search Engines and the Internet Industry generally. Had this decision gone against Google, it would in all probability have opened the floodgates for a number of similar claims against them and had a massive effect upon how people use the web as well as Google’s role in them doing so. Clearly, Google could not be expected to police the contents of every site which comes up in search results, which Justice Eady clearly recognised.

However, the price of freedom for the Search Industry will be eternal vigilance – the Judge confirmed that Google does still have a responsibility to block or remove content if it receives a legitimate compliant over libellous material. To ensure that they are not liable, search engines, ISPs and any other “intermediary” businesses will need to move very quickly. Otherwise, they may face actions for comments which were made abroad but can be read in the UK, where libel damages are more generous. The advice has to be that if in doubt, remove the content and deal with it later as an ounce of prevention will be worth potentially hundreds of thousands of pounds of cure.

Stephen Fry: Celebrity Tweeter and File-Sharer Extraordinaire?

Stephen Fry, Actor, Comedian, Writer and one of the most visible celebrities to fully embrace the world of Web 2.0 has defended illegal downloading as well as admitting to doing it himself, describing the Entertainment Industry’s approach to unauthorised filesharing as “stupid”. Fry described the prevailing approach within Record Labels in particular to take action against individual filesharers as “stupid”, noting that “Making example of ordinary people is the stupidest thing the record industry can do,” he told a London audience.

He then went on to admit that he uses the file-sharing service BitTorrent to catch up on various TV shows, including the phenomenally popular “24” and “House”, featuring his former co-star Hugh Laurie, before warning that downloading on an “industrial scale” was not defensible.

Stephen Fry is at the forefront of a long list of celebrities who are using Web 2.0 technology, in this case Twitter, to get their opinions out to the internet-using world and to enhance their profile as a result, and has one of the largest “followings” on the site.

The speech he made was to a selected audience, but his message has already got out onto the web and attracted a lot of attention mainly due to the fact that it took place at the iTunes Festival on the subject of the history of music copyright. Within hours, Stephen was already making it clear, via Twitter, that he did not advocate piracy.

Stephen’s comment comes in the midst of a very vocal and topical debate on how filesharing really affects the Entertainment Industry, as well as how the problem should be dealt with. English Copyright Law is very clear on the subject – if you share files over the internet, you are infringing Copyright by making a copy of the file in question and then making it available to other users.

The Government recognised the scale of the problem in the recent “Digital Britain” report, which suggested slowing down the broadband speeds of web users who download illegally. The problem is, however, that there is a huge amount of confusion amongst the general public (and the UK’s alleged six million illegal filesharers) as to what is and what isn’t an illegal download, and while it is true that Record Labels and Movie Studios need to look for new business models and make as much material as possible available for download legally to obviate the need for a pirate-driven option, the fact that filesharing is so widespread will almost certainly mean that we’ll see more cases against brought against “ordinary people”.

The way the law works currently means that each pirate has to be pursued individually, although the Digital Britain report puts some of the burden on OFCOM, which will cost the Entertainment industry a huge amount in legal costs, so it’s very important for them to get a few landmark cases which they can use to educate filesharers through fear of reprisal.

Until the Entertainment Industry does come up with a new way of dealing with Copyright, Stephen may end up as one of the first public figures to receive a “warning letter” or have action taken against him, and all for the sake of watching Hugh Laurie.