Former Busted members fail in rights claim: McPhail and Doyle v Bourne and Sargeant

Two former members of the band Busted have failed in their High Court action to obtain a share in the goodwill in the name Busted and a share in the copyright in certain songs written by members of “Busted”.

The claimants, Kiley McPhail and Owen Doyle, were members of the band from around December 2000. The two other members of the band, James Bourne and Matthew Willis, were defendants in the action. McPhail and Doyle effectively left the band in October 2001. Bourne and Willis subsequently recruited Charlie Simpson into the band and they went on to have several hits.

At the time McPhail and Doyle left, the exposure of the band to the record industry was limited and the judge did not believe that Busted had given rise to a “buzz” in the industry by that time. There was, therefore, no goodwill in the name Busted during the time that McPhail and Doyle were members. Any goodwill in the name was built up by the three piece band after they had left.

McPhail and Doyle had also argued that as they were writing and performing with Bourne and Willis, the band was operating as a partnership. The goodwill in the name was, therefore, an asset owned by the partners. But, the judge held that in order for there to be a partnership there must be a contractual relationship between the band members. The judge found that there was no express contract between them. Since the relationship between the band members was of an informal nature, he decided that it was not appropriate to imply a contractual relationship by their conduct. Since there was no partnership, the name was not partnership property. This aspect of the judgment appears to contradict the conventional view that a partnership exists between band members who perform, record and write together with a view to a profit unless they organise themselves differently (eg by trading as a limited company).

The judge refused to set aside a settlement agreement between McPhail, Doyle, Bourne and Willis made in March 2002. Under this agreement, McPhail and Doyle would own all of the copyright in two of the songs performed by the old line up and Bourne and Willis would own the copyright in four of the songs. These four songs were recorded by the band after the departure of McPhail and Doyle and achieved a great deal of success. McPhail and Doyle had asked the judge to set this arrangement aside on various grounds including on the basis of misrepresentations made by Bourne and Willis and their advisors and of undue influence by the band’s manager. The claimants argued that they should be entitled to a share in all of the disputed songs (in varying proportions) and invited the court to evaluate each band member’s contribution to those songs.

The judge refused to interfere with the settlement agreement and to carry out the evaluation. He made clear that he preferred the evidence of Bourne and Willis to that of McPhail and Doyle. He found that McPhail had given evidence in this regard which was either blatantly untrue or which he had managed to convince himself was true, but wasn’t.

The judgment underlines the importance for any new band in ensuring that the arrangements between themselves (particularly in relation to the authorship and ownership of songs written by them and rights in the group name) are carefully considered and documented at an early stage.



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