In our July 2002 early warning we commented on Beckingham v Hodgens, the High Court decision in which the session musician Robert Beckingham pka Bobby Valentino who played a violin part on the The Bluebells’ hit ‘Young At Heart’ was awarded a share of the music copyright in the song. This decision was upheld by the Court of Appeal last week.
The claimant Bobby Valentino was paid £75 for playing on the recording of ‘Young At Heart’. The unsuccessful defendant Robert Hodgens of The Bluebells maintained that he was the composer of the violin part and the owner of the entire music copyright in the song.
‘Young At Heart’ was a hit for The Bluebells in 1984 and again in 1993 when it was used in a Volkswagen advertisement.
Bobby Valentino initially decided not to press any claim. In 1993 he changed his mind and he informed Robert Hodgens that he would be making a claim.
Mr Christopher Floyd QC in the High Court found that Bobby Valentino was the composer of the violin part. He also found that the three requirements for joint authorship were satisfied. These requirements are that (a) there must be a collaboration in the creation of a new musical work, (b) there is a ‘significant and original’ contribution from each joint author and (c) the contributions from each author must not be separate.
As a joint author Bobby Valentino was entitled to a share of the music copyright. The judge also rejected arguments that Bobby Valentino should not be allowed to raise his claim ten years after the event.
Robert Hodgens appealed to the Court of Appeal. It was not possible for him to contest the finding of fact made in the High Court that Bobby Valentino had composed the violin part. This left Robert Hodgens little alternative but to accept also that the three recognised requirements for joint authorship were present.
Robert Hodgens had two main grounds of appeal.
The first was that to the three recognised requirements of joint ownership should be added a fourth – a joint intention to create a joint work. This would have provided the basis for an argument by Robert Hodgens that he had never intended that Bobby Valentino should be a joint author of the song.
The Court of Appeal dismissed the argument that there was a fourth requirement for joint authorship. Intention to create a joint work was not required by the relevant section of the Copyright, Designs and Patents Act and it would be an undesirable addition.
Robert Hodgens’ second ground of appeal was that the judge was wrong to have concluded that Bobby Valentino was entitled to raise the claim at such a late stage.
Robert Hodgens relied on the quaintly named ‘estoppel’ principle. This is the principle that where one party has led another to believe that a claim would not be advanced and that other party relies on this to its detriment the court will not allow the first party to raise the claim subsequently where it would be ‘unconscionable’ or unfair to do so.
On this issue Robert Hodgens also failed. It was important that Bobby Valentino was not seeking any share of income prior to 1993 when he put Robert Hodgens on notice that he was asserting a claim.
It was argued on behalf of Robert Hodgens that he had entered into a publishing deal under which he had given the usual warranties as to his ownership of music copyrights and indemnified his publishers against third party claims. Similar arguments had met with a favourable response from the courts in previous cases but on this occasion the Court of Appeal was clearly unsympathetic. Lord Justice Jonathan Parker commented: ‘I remain wholly at a loss to understand in what respect it could be alleged that Mr Hodgens has suffered detriment in this respect.’
There will be more of these claims so music publishers beware. The only way to head off claims by session musicians is to deal with the matter at the time the recording is made and obtain appropriate clearance documentation. This is no easy matter as many session players have publishing deals themselves and are not in a position to sign away their share of the copyright in the songs to which they contribute.