The High Court decides that a session player is entitled to a share of the copyright in the song on which he played. This case shows yet again that the convention in the music industry and the law are not the same.
Last week’s High Court judgment revisited the issue of the backing musician’s entitlement to a share of the copyright in a song on which he has played. Similar issues have been before the court several times in recent years, the best known occasion being Hadley, Keeble and Norman v Kemp (the Spandau Ballet case) in 1999.
The music industry convention is that a songwriter who comes up with the chords of a song and its vocal melody is usually to be considered its sole composer. However, these court decisions show that convention in the music industry and English copyright law are far from the same.
The claimant, Robert Beckingham pka Bobby Valentino, had been a member of various bands and a session musician. He played a violin part on the recording by the Bluebells of the song “Young at Heart” in 1984. He was paid £75. Robert Hodgens of the Bluebells and his girlfriend Siobhan Fahey, then a member of Bananarama, were credited as the writers of “Young at Heart”. The song was a hit in 1984 and repeated its success in 1993 when it was used in a Volkswagen commercial.
Bobby Valentino maintained that he had composed the violin part. Robert Hodgens disagreed.
Having decided not to assert a claim in 1984 Bobby Valentino changed his mind in 1993 and told Robert Hodgens that he would be making a claim. Proceedings were eventually commenced in 1999.
Christopher Floyd QC came to the conclusion, contrary to a vigorous defence by Robert Hodgens, that Bobby Valentino had composed the violin part. The judge then had to consider whether this made Bobby Valentino a joint author of “Young at Heart”.
The requirements for joint authorship are (i) that there must be collaboration in the creation of new musical work, (ii) there must be a “significant and original” contribution from each joint author and (iii) the contributions from each author must not be separate. The judge was satisfied that all requirements were present.
He also dismissed the argument that Bobby Valentino should not be allowed to raise his claim at such a late stage. He found that Bobby Valentino had granted an implied licence, royalty free for the period 1984-1993 but was entitled to give Mr Hodgens notice, as he had done in 1993, that this licence was revoked and that in future he would claim a share of royalties.
Had Bobby Valentino come before Mr Justice Park who decided the Spandau Ballet case he might well have failed. Mr Justice Park frankly acknowledged his lack of musical expertise. Some rather dubious guidance from various witnesses led him to try to draw a distinction between composing music and performing it. Given that most modern popular music is composed by playing, this was both confusing and unhelpful.
Christopher Floyd QC on the other hand confidently dealt with the musical issues. Whether this is due to a youth misspent jamming in dingy rehearsal rooms or to years spent singing in the local church choir remains unknown.
Where the main songwriters decide that a backing musician’s contribution does not merit a share of the music copyright it should be possible to head off claims by obtaining appropriate clearance documentation. This takes some care. Session players with their own publishing deals will not own the copyrights in musical works which they compose and therefore they may not be in a position to sign them away.