B e f o r e :
MISS HAZEL WILLIAMSON QC
(sitting as a judge of the High Court)
||BAMGBOYE and ANOTHER
||REED and OTHERS
Tape transcription by Smith Bernal Reporting Ltd
190 Fleet Street, LONDON EC4A 2AG
Tel: 020 7404 1400
Official Court Reporters
MR G HARBOTTLE appeared on behalf of the Claimant.
MR N REED, MR D WILSON and MR W BROWN appeared In Person.
HTML VERSION OF JUDGMENT
Crown Copyright ©
- This is a trial of preliminary issues of liability in respect of a claim by the first claimant, Mr Anthony Bamgboye, and the second claimant, Sherlock Holmes Music Limited, which is his publishing agent, against Mr Nick Reed, Mr Winston Brown and Mr Daniel Wilson and Relentless Records Limited, as defendants. Mr Bamgboye with the second claimant, as his assignee, makes a claim to share in the copyright in respect of the original musical work, the copyright in respect of a sound recording and performer's rights, in relation to a piece of popular music, which I think is of the genre described as 'two-step', and which is called "Bouncing Flow".
- The first claimant is now aged 23, and he is represented by Mr Harbottle. The second claimant, in fact, takes no part in this matter, it now having been accepted that any question of the validity of the assignment does not arise. The second claimant has elected simply to abide by whatever decision the court makes. The first defendant, Mr Reed, was earlier known as Kwambe Achepong, but has changed his name by deed poll to Colin Nick Reed. He claims that it is he who produced the music for Bouncing Flow. He says that as far as Mr Bamgboye had any input, this was entirely at his direction, assisting him as a sound engineer, in other words merely helping him to record his own ideas. He also denies that Mr Bamgboye has any rights in the sound recording of the piece that was eventually made. In so far as any question of performer's rights arises, since he states that, in fact, it was not Mr Bamgboye who did any performing but him, again he denies that Mr Bamgboye has any performer's rights in that respect.
- The second and third defendants, Mr Winston Brown and Mr Daniel Wilson, are the vocalists on the Bouncing Flow piece. They have attended throughout the trial in support of Mr Reed. The fourth defendant, Relentless Records, like the second claimant, takes no part and is content to be bound by the decision of the court. Relentless Records is the record company that has subsequently published a version of Bouncing Flow which was edited for commercial release.
- The first, second and third defendants have appeared in person throughout the trial. They were represented legally until, I think, the week beforehand but then took over the case themselves. The first defendant, Mr Reed, took the main part in presenting the case, and I would like to pay tribute to his ability in doing so. Although he was not a lawyer, he had obviously worked hard, doubtless with the support of the second and third defendants and some of his witnesses, to present the case and to make their position clear. He showed a good grasp of the material factual points, whilst sensibly accepting that as a non-lawyer he could not assist me with technical matters, particularly in an area of law so technical as copyright. Although he was not trained in legal procedure, he handled the presentation of both the evidence on the defendants' side and the presentation of their case very well.
- So as far as the story goes, perhaps the first point is about 22 years ago when a gentleman, now known professionally as JG Braithwaite, had his first hit record at the age of 18 in the club and dance music scene. Shortly after that, he became involved with his own recording studios and has had, I am told, a successful career in the popular music industry since.
- Coming more up-to-date, in about 1996 Mr Braithwaite acquired the lease of a recording studio in Whitechapel, which eventually became known as the "A n R" Studios. Within about a year, he was joined in that enterprise by his younger brother by five years the first defendant who, as I have said, had adopted the name of Colin Nick Reed, but is also professionally known as Don E Bravo. I have been told, and I have seen evidence, that it is a frequent practice in the pop or club music industry to have several pseudonyms, often for use for work in different capacities. Mr Reed told me that he was inspired by his elder brother whom he wanted to follow and who had sold him the dream of a career in the music industry. He very much respected and admired his elder brother as an artist and producer of pop music, and he came into the business with vast enthusiasm to follow in his brother's footsteps. He told me that Mr Braithwaite was his mentor and that he had worked extremely hard and long hours to achieve work of a good standard, which largely meant work that would win his brother's approval, either directly or perhaps by obtaining recognition outside so as to bring his brother's approbation. I accept that he did work hard as he said.
- It would not be right to say that Mr Reed became a partner with his elder brother in the formal sense. JG Braithwaite was definitely the "head honcho" (as he was described) at A n R. All the witnesses with any knowledge of the studio agreed on this. However, Mr Reed's position as younger brother of the boss gave him a degree of status and, therefore, of some authority over others in the studios. By the same token, his relationship with Mr Braithwaite meant that he was indulged by the boss on occasions where the same latitude would not have been extended to others.
- There were others involved in the studios. In particular, there was an experienced sound and recording engineer called Fidel Rosales. The studios were primarily involved, as I understand it, in trying to produce original works and publicise them so as to attract the interest of the clubs and disc jockeys and eventually, hopefully, the record labels, although I am told also that Mr Braithwaite had his own label, and on occasions he would press, as one has seen, records for distribution for the club music scene and also burn limited edition CDs, which were passed around in order to seek to stir up interest in the pieces on the records. The studios were at times, however, also booked by outsiders who, for a fee, could come in and record works there, and would obtain a greater or lesser degree of assistance from the technical staff.
- As far as the claimant is concerned, his involvement began in 1997. He was then 18 and was about to go to university to do a degree in marketing, but his real ambition was to go into the music industry. He had studied music since childhood, and he had a certain amount of his own equipment. Although he was a business student at college, he had attended music classes as well and had been allowed to use recording equipment in the sound laboratory there and attended for part of the media studies course. He also had got so far as to pay to have work of his own recorded so that he could provide demo tracks. In this he had performed as a rap artist.
- In 1997 Mr Braithwaite placed an advert in "Loot" magazine seeking hopeful youngsters in the music industry to come and see whether they could obtain work or were any use for operations in the A n R studios. Mr Bamgboye answered this advertisement and he did so as a keyboard player. He had, in fact, studied piano to the level of Grade 3, but he also took some tracks of his own that he had performed, and played these to Mr Braithwaite. Mr Braithwaite listened. Mr Bamgboye says that Mr Braithwaite appeared to like his music. When Mr Braithwaite gave evidence, he said he did not really do so and was merely being polite, and encouraging a young man he thought might have talent.
- The upshot, at any rate, was that Mr Bamgboye was invited to attend the studios whenever he could during his university course in order to learn the ropes. Initially, he would start as a trainee tape operator. Mr Braithwaite made it clear that there was no money involved, but the opportunity was there to learn all that went on in the studios and gain experience, and to use the studio during "downtime", i.e. when nobody else was booked to use it or when nobody senior wanted to use it, in order to practise, gain experience and possibly record some of his own works. This Mr Bamgboye began to do. He was apparently keen. He learnt from Fidel Rosales, and he agrees that he learnt a very, very great deal because Fidel was very skilled. It seems as though he was there virtually every spare moment. He began initially as a tape operator, learning how to align the tapes, clean the heads etc, etc. He watched everything else and gradually moved on to other equipment.
- I was told how music of this type, which is very often computer generated, was constructed. This may not be the same everywhere, but, in basic principle, elements were recorded separately and then combined. The music would be recorded first, with the different elements of music being put together on a loop to give a general basis of repetition throughout the piece. These would come from the ideas of those involved in the production as to what would sound good and would work as a piece. One probably started initially with the appropriate tempo, putting in drums and a drum pattern and expanding on that, and then moving into providing baselines, melodies and so forth, adding sonority by adding different voices on an electronic computerised equipment to fill out, and flesh out the sound. Finally, there would be, at times, effects and so forth that were inserted - sound effects, explosions, crashes, anything that seemed to the producer, the author of this work (who in this industry is usually described as the producer) - anything that would seem to him to be appropriate to make the piece attractive and commercial.
- To begin with Mr Bamgboye, as I have said, was a tape operator. He does appear to have acted as a tape operator for JG Braithwaite at some time initially, but this was not successful. Mr Braithwaite told me that Mr Bamgboye really was not any good at it; he was too slow, and did not do the job terribly well, so Mr Braithwaite went back to using Fidel Rosales.
- There were others who were involved with the studios. There was apparently another young engineer called Olivier, who stayed only for a very short time after Mr Bamgboye began his acquaintance with the studios. There was another engineer, I think called Damian Egan. There was a young lady called Hayley Blackman who was a vocalist and who was actually in the same class as Mr Bamgboye at university, although they only met, so far as to speak to each other when she was brought down to the recording studio to see whether she too might do any work there.
- Mr Bamgboye's involvement at this sort of level went on for about three years, until the time that is material in this action. During this time he gained experience and, as I have said, he readily acknowledged that he learnt virtually everything he knew from Fidel and, indeed, also from the first defendant. During this time he wrote some of his own pieces. He was also given the keys to the studio so that he could go in and could use the studio at times when others were not there. He graduated on to other equipment and learned how to use various pieces of equipment as an engineer and how to get effects out of them. He had his own equipment at home, as I have also said, and he was apparently building his own sound bank of various sounds that might be useful in producing this type of music. He learned a very great deal, but there is a difference of evidence as to how useful or good at the work he actually got. He says, with due modesty, that he did get good at it. The defendants, and in particular Mr Braithwaite, say that he did not really do so.
- However, in 1999 Anthony Bamgboye and Hayley Blackman produced together two musical tracks under the group name of Rhythm 'n' Blues. Miss Blackman was the vocalist, she having a stage name of Lena Renvoir, and Mr Bamgboye produced and engineered these two tracks. I think he also played on them as well. At any rate, these two tracks were regarded as being sufficiently worthwhile to show to Mr Braithwaite to see if they met with his approval, and they plainly did because the two tracks eventually found their way on to a demonstration CD that was pressed in a limited edition and which was called "Flava of the Underground". This CD had ten tracks on it and the two in question, that were entirely the product of Mr Bamgboye and Miss Blackman, were known as "Grooving Me" and "So Beautiful". There were two others tracks which are material. There was a track called "Touch Me", in which Mr Bamgboye featured as having provided a mix for that track, although his view was that he had actually provided a remix, which is a rather more radical form of mixing, in the industry parlance that the defendants and plaintiffs use. So he felt he was undercredited as far as that was concerned. He also felt that he had not been credited at all for the tenth track, a piece called "The Sound of Music", which he said he had been involved in. So he was, no doubt, pleased that his work was on this disc, but he and Miss Blackman were unhappy that they felt their work had not, in fact, been fully acknowledged in the printing on the inlay.
- Mr Braithwaite at this time produced, or instructed his publicity people to produce some PR material in order to try and promote "Flava of the Underground", because he was hoping that it would interest a record company, whereupon it would have been expanded into 16 tracks. The other six tracks that were proposed would have actually required clearing other peoples' rights and, therefore, it would have been expensive to put them on to a mere limited edition sampler CD, if I can call it that. Mr Braithwaite says he was showing his generosity in assisting and encouraging young talent in allowing Mr Bamgboye and Miss Blackman to appear on this particular record. The publicity material is, however, quite generous in its praise of Mr Bamgboye and the work of his that is actually on this label. Although Mr Braithwaite did not write it, it seems that he was quite content for this material to go out. Of course, though, I recognise that any publicity material is bound to try and create praise for the work and show it in as attractive a light as possible.
- The next event in the story is around April 2000. At this stage, there was a big row between Mr Bamgboye and Mr Braithwaite. Mr Bamgboye claimed that he had not been credited with a piece of work that he had actually done, as I understand it, in studios next door that belonged to Fadi Gregorian. It seems that Fadi was another producer, but the two studios were right next door to each other and the parties, as is the way of things, would often deal with each other and were, no doubt, on friendly relations. However, when this record or CD was produced, Mr Bamgboye blamed Mr Braithwaite for the fact that he had received no credit on the publicity material and had a row with him, which was in public. This was seen as being very disrespectful and was quite out of order in the sort of culture that the studios had. Mr Braithwaite said he knew nothing about what had gone on; it was Fadi's mistake and, indeed, a mistake at the printers. Mr Bamgboye, however, was very angry and stormed off. In consequence, Mr Reed asked him for the keys to the studios back and he gave the keys to the studios back and then apparently disappeared for several weeks.
- It was all particularly unfortunate because, in fact, Mr Braithwaite was not at all to blame and the problem had indeed been a mistake at the printers. Some time later, it is said that Mr Bamgboye wanted to return to the studios, and Mr Reed says he managed to make peace with Mr Braithwaite who had been extremely angered at the row and the public disrespect for him. Mr Bamgboye says that he apologised. Mr Braithwaite, in evidence, said that he did not hear it. In other words, if there was an apology he did not feel it was really made clearly and generously enough. The upshot was that through Mr Reed's good offices Mr Bamgboye came back to A n R Studios, but Mr Braithwaite had decided that Mr Bamgboye was now entirely Mr Reed's responsibility, and he told me in evidence he would not have had Mr Bamgboye back on his own account. As I have said, his evidence was that Mr Bamgboye had been a great disappointment to him. He had not progressed and learned as much as he should have done, or how to work as well as he should have done. It was very frustrating dealing with him. He (Mr Braithwaite) did not think that Mr Bamgboye's work was particularly worth much, but Mr Reed wanted him to come back and he was indulging his younger brother. From that time on, therefore, Mr Reed would work with Mr Bamgboye, and he would be responsible for Mr Bamgboye.
- Bouncing Flow was apparently conceived in about July 2000. There is a difference of evidence as to how this came about. As far as the music is concerned, the start of this was a session, which everyone agrees, I think, was a major session, in which Mr Bamgboye was involved with Mr Reed. Mr Reed agrees this. There were then two further sessions before the basic music was completed in a sort of rough cut. Mr Bamgboye says he was at all three sessions. Whilst he was not at the beginning of the initial session (and this is common ground), he says he came in when Mr Reed had a partial drum pattern already laid on an eight bar loop. He says that from that point he helped by adding further drums, such that at the end he was creator, he would say, of half the drum element in the piece, although he accepts that Mr Reed added snare patterns and obviously had created what was already on the tape. Mr Bamgboye also says it was he who, in effect, composed the eight bars which provided the baseline, a subsidiary or "busy" baseline, and were further recorded with string parts and became, with a slight variation, the melody of the piece. He also says that he added "crashes", which I think are cymbal effects.
- Mr Reed says that, as far as this one main session was concerned, it was one which he initiated, but he accepts that Anthony arrived part way through. However, his account is that he (Mr Reed) had brought in a tape of another piece, which had the various parts all recorded on separate tracks. He had taken out ("muted") the parts of those tracks that he did not want in order to isolate the drum pattern, and he was working on this track when Mr Bamgboye arrived. Indeed, he produced part way through the trial -- this was no fault of his, it was a document that had already been sent to the claimants but had not been taken up -- an account of I think, a CD or possibly works on a tape known as "Dre Day 2". The original recording had been "Dre Day 1", but he had taken this into the studio and recorded parts of it separately to save it under a different name on the computer, so that he would not record over "Dre Day 1" and lose it. He was working from "Dre Day 2" and I have been provided, and everyone was provided, with printouts from the Logic Audio files of this piece. These show, in visual form, the muscial parts that are actually recorded on the various sections or tracks of the computer files that will produce the music when they are activated and played. He agrees that Mr Bamgboye attended part way through, although he was not perfectly clear as to exactly what point he reckoned he had got to when Mr Bamgboye came.
- Mr Reed's evidence was to the effect that it was he who had completed all the drum parts, and that he had composed the musical lines himself, using the keyboard and using the Logic Audio program, subsequently, to amend via the computer the length or the pitches, (possibly) of various notes. This is something which could be done laboriously as an alternative to playing in the notes that one actually wants on the keyboard itself. Mr Bamgboye's assistance, therefore, had consisted only of being engineer: in other words, helping him to get the sound he had envisaged. In so far as Mr Bamgboye had used the keyboard, Mr Bamgboye had only done so in order to play in pieces of music that were actually his ideas that he had given to Mr Bamgboye, it being more efficient to get Mr Bamgboye to do it rather than for him to do it himself. So to that extent, Mr Bamgboye was acting as an engineer rather than in any sense as a composer of the piece. There were then two more sessions of tweaking at the music, which according to Mr Reed, Mr Bamgboye did not attend.
- At any rate at the end of those three sessions there was a rough cut of music for the Bouncing Flow piece which lasted about five minutes, I think. Then came the question of finding vocals, and it is common ground that Mr Bamgboye had no part in this at all. The vocals were laid down by the second and third defendants. These two gentlemen already knew Mr Reed from their shop, which I think is primarily the brainchild of the second defendant, Mr Brown. It seems to be involved in various community projects of all sorts, not just music, and doing worthwhile work with young people in the community. Mr Brown had been asked by Mr Reed to do the vocals and he brought along Mr Wilson as well. At the time they came to the studio, the evidence is that Mr Reed was interviewing an engineer for a post, so after some playing with the rough cut of the backing track to get the feel of it, Mr Wilson and Mr Brown were sent off to the canteen to have a cup of coffee and to try and write some vocals. They wrote the verses and the chorus of Bouncing Flow then and there. There was a chorus, and either three or four verses, written in around about 45 minutes to an hour. It might have been a bit longer than that, but that sort of order. They then came back to the studio and they recorded the vocals and, of course, the vocals were recorded on a separate track so that they could be played separately and edited as necessary later.
- Then the next thing that happened was the mixing session. There were two sessions, fitting the music and the vocals together. Again, Mr Bamgboye says that he attended and was instrumental in carrying out this work, which involves sorting the vocals into the right order and playing the music and organising the music, editing it to fit. The consequence was that by some time around 14th July 2000, (which is the date on a computer file, a copy of which has been supplied to me) there was what one might call the basic tape. It may have been a tape or it may have been a different medium, but at any rate one now had the basic "Bouncing Flow", a five minute long piece of musical backing and vocals.
- However, it was not yet entirely satisfactory in Mr Reed's view, although I think Mr Bamgboye accepts that he would probably have left it at this. Mr Reed was not satisfied and wanted to do more work. By this time A n R had moved out of the studios because the lease had come to an end and, in fact, the next door owner, Fadi, took over. A n R had, at the time, only a building that was in a fairly poor state which they were going to convert into studios for themselves, but this had not happened. Mr Bamgboye had equipment at his own home. He had his own, or more accurately, his parents' PC, which was capable of taking a sound card -- that is one of the important items for producing music; you can do it on a computer provided you have a sound card. He also had some equipment at home which he had borrowed from A n R. It was common ground that he had taken back, I think, a mixing machine and he also says that he borrowed various other items. One in particular, a DAT (digital audio tape) machine had been borrowed somewhat earlier. There is a difference as to whether it was borrowed especially for the purpose of recording "Bouncing Flow" or whether Mr Bamgboye had simply borrowed it for his own use and was allowed it as a matter of generosity. There was also a microphone of A n R's that was brought to Mr Bamgboye's house in anticipation of work that was going to be done.
- On 17th August, there was the first of the recording sessions that produced the final version of "Bouncing Flow" from A n R's point of view. It is common ground that Mr Reed brought the tape of "Bouncing Flow" to Mr Bamgboye's house. It was then to be further worked on on the computer, and to do this it was necessary to transfer the music from the tape into the computer so as to use the Logic Audio files with it. I think it was this occasion when Mr Reed came with Mr Wilson. Mr Wilson attended one of the two occasions that I am referring to, and a friend of Mr Bamgboye's, a Mr Ruti, was also present, although he was busy composing a CV for himself on some other computer equipment and was therefore only half listening to what was going on.
- It was at this session that the tape was "chopped" and embellished with further effects to make it more interesting. The chops involve taking pieces of the tape and repeating them several times, one after another. That technically describes a "chop", and there were a set of these in the first verse, which was known as the "Geronimo" verse. A small simple chop at the end (I think) of the second verse was also put in. There were also further embellishments with sound effects I have indicated, such as explosions, possibly whistles and so forth, to make the track more interesting. I think the whistles may have been there already, and it was primarily the explosions that were the further sound effects. Also at this stage, some earlier credits that had been given on the tape were taken out because they were personalised and, therefore, would not be appropriate for a general tape.
- On 21st August, there was another session at Mr Bamgboye's house. At this stage, there was apparently some further final editing, of the type I have indicated, and mastering was done. This is the last operation, and involves adjusting the levels of sound on the various sections so that their balance with each other is regarded as being the best for the piece.
- During these sessions, Mr Bamgboye says he was collaborating with Mr Reed and was acting as a co-author/composer/producer of the piece. Mr Reed says that Mr Bamgboye was merely again the engineer implementing his ideas. He says Mr Bamgboye says he operated the equipment, and I think that is not in dispute. Mr Bamgboye, though, says some of the ideas were his, although he does accept that throughout the whole operation Mr Reed would have had the final say on anything. In evidence he accepted, in effect, that whoever's an original idea had been, if Mr Reed liked it it would stay in, but if Mr Reed did not like it it would be deleted. However, if he did not like something that Mr Reed put in, it would still stay in.
- Mr Reed then took away the final version of "Bouncing Flow" and the A n R equipment at this stage, and he left saying something along the lines that he would "be in touch". There is a disagreement as to whether the implication of this was that Mr Reed was going to keep Mr Bamgboye informed about efforts to market "Bouncing Flow" or whether this was merely a polite departure indicating that, no doubt, they would see each other again some time soon. Mr Bamgboye says he then heard nothing. He drifted rather apart from A n R at this time. Mr Reed and Mr Braithwaite were busy building their studios, and Mr Bamgboye had by this time teamed up with another engineer, a Mr Lee Guest, with whom he has since been collaborating.
- However, Bouncing Flow did excite interest. The people who were involved in producing it had taken upon themselves the name of "The K2 Family" and under that name in December 2000 the piece was pressed up and circulated around the clubs. As a result, a deal was signed with Relentless Records, evidence by a deal memorandum signed in March 2001. It was signed between the first three defendants as, effectively, the owners of the Bouncing Flow piece.
- Some time around this time Mr Bamgboye contacted Mr Reed again and asked what was going on. Possibly as a result (Mr Reed says) of Mr Bamgboye's being somewhat dismissive about A n R's achievements and standards, Mr Reed told Mr Bamgboye of the K2 Family's good family fortune in having promoted interest, but said that Mr Bamgboye was no longer part of it. He was not welcome and (in the vernacular) he was "not rolling". Mr Bamgboye spoke to Mr Reed later on the telephone and said that his agent wanted to see him about Bouncing Flow and, in particular, about rights in Bouncing Flow. This incensed Mr Reed and Mr Bamgboye very much got a brush off. Mr Reed was affronted by this approach. He told me he would have been prepared to discuss an engineering fee, because he accepts that Mr Bamgboye had done some work on the piece, but it was not in order for Mr Bamgboye to be seeking to claim he had any rights in the piece itself.
- In June 2001, Mr Bamgboye, however, registered his claim -- and I think by this time it had probably been assigned to the second defendant -- to rights in Bouncing Flow and the other tracks that he had worked on which might be commercial. These I think were the tracks that appeared on "Flava of the Underground". This action started shortly afterwards in September 2001, there having been solicitors' correspondence since immediately after the telephone conversation between Mr Reed and Mr Bamgboye that I have referred to. (I think it was a telephone conversation rather than a conversation in person, but it is not material.) As mentioned earlier, the two companies have taken no part today. Mr Bamgboye has been represented by Mr Harbottle, and the three defendants have appeared in person.
- At this point I turn to the law, and I am greatly indebted to Mr Harbottle for his help with this. There is always a heavy burden on counsel appearing against litigants who do not have legal representation because they have to help the court to see both sides of the case. In an area of law as complex as copyright this is particularly important, and I would say that Mr Harbottle has discharged this burden on counsel admirably.
- The law is to be found in the Copyrights, Designs and Patents Act 1988. In regard to copyright, section 1 provides that:
"Copyright is a property right, which subsists in accordance with this part in the following descriptions of work", and under (a) one finds "original literary, dramatic musical or artistic works" and I am concerned with an original musical work. Under (b) one finds "sound recordings, films, broadcast or cable programmes".
- Then there are various rights that subsist in copyrights, which are dealt with at section 2. The owner of copyright in a work has the exclusive right to do the acts specified in Chapter 2 as the acts restricted by copyright in the work of that description, and this relates to various methods of reproducing the material, and in certain instances a right to be identified as author or director of the work.
- 37. Then, when one looks at descriptions of "works" and related provisions, one finds at section 3 that the description "musical work" means:
"A work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music", and under section 3(2) it is prudent that:
Copyright does not subsist in a musical work unless and until it is recorded in writing or otherwise", and "references in this part to the time at which such work are made are to the time at which it is so recorded."
So one is looking at copyright only in a work that has been recorded. Hence questions arising here are as to the input into the various recorded versions of the piece that came to be known as Bouncing Flow.
- I can move on at this point to section 9(1), because I am dealing with musical work. Section 9(1) says:
"In this part 'author' in relation to a work means person who creates it", and then there are descriptions as to who that person is.
I will not deal with sound recording at the moment, and I can move on to section 9(3):
"In the case of a musical work, which is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken."
So that is dealing with the case where one is looking at a piece of music which, in fact, is composed of computerised sounds.
- Section 178 tells us what is meant by "computer generated" and one finds that computer generated in relation to a work means:
"A work is generated by computer, in circumstances such that there is no human author of the work".
This section is therefore of background interest only in this case.
- The Act recognises the concept of a "work of joint authorship" as meaning:
"A work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors".
As regards joint authorship, I was referred to the case of Robin Ray v Classic FM  FSR 622, and in particular to a passage at page 636, beginning:
"A joint author is accordingly a person one who collaborates with another author in the production of a work ... (ii) who, as an author, provides a significant creative input, and (iii) whose contribution is not distinct from that of the other author. He must contribute to the production of the work and create something protected by copyright which finds its way into the finished work - see Carla Homes v Alfred McAlpine. Copyright exists not in ideas but the written expression of ideas. A joint author must participate in the writing and share responsibility for the form of expression in the literary work [that, I would say, would apply to a musical work]. He must accordingly do more than contribute ideas to an author, he must be an author or creator of the work in question. It is not enough that he thought up the plot of a play or made suggestions for a comic routine to be included or, indeed, that he passed on his reminiscences to a ghost writer. It is not sufficient that there is established to have been a division of labour between two parties in the project of writing a book if one alone is entirely responsible for the skill and labour of authorship of the work - see Filed Microsystems v Key Radio Systems."
- So that is the principle and the approach to deciding whether there is, indeed, joint authorship. I was additionally very helpfully referred by Mr Harbottle to the case of Hadley v Kemp  EMLR 589 at 642. At page 642 to 644 there is a summary of the authorities on joint authorship in the field of pop music from which Mr Harbottle suggests, and I agree, that the following broad principles apply:
(1) whether a person is a joint author is a question of degree;
(2) the contribution must be to the creation of the musical work, not to its performance or interpretation;
(3) the contribution does not need to be equal in terms of quantity, quality or originality with that of the other collaborators, but it must still be significant, and
(4) the cases agree that if there are two or more persons who are joint authors they own the copyright in equal shares, but it is suggested that is not an invariable rule because sometimes the authors may be joint tenants rather than tenants in common and in that case until severance there are no shares.
- Mr Harbottle submitted -- and in my judgment this must be right -- that there is no requirement that joint authorship necessarily involves equality on a 50:50 basis. It would be possible for there to be, as it were, a joint ownership in unequal shares in principle.
- Finally, I refer to section 10(3). It provides that:
"References in this part of the Act, to the 'author' of a work are, except otherwise provided, to be construed in relation to a work of joint authorship as reference to all the authors of work."
I should say that that point might have been material, because there was at one stage an issue about the question of whether Mr Bamgboye qualified as being entitled to protection for copyright on the basis of his citizenship. However, since it is now accepted that he is a British citizen and always has been at the material times, and since the music itself was made within this country, no questions of that type arise and they can be disregarded.
- There is another issue though which is that of employment which has been raised by the legal pleadings that were put in on behalf of the defendant. Section 11 of the Act says with regard to first ownership of a copyright:
"The author of a work is the first owner of any copyright and it is subject to the following provisions ... (2) where a literary, dramatic, musical or artistic work or a film is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work, subject to any agreement to the contrary."
It is said on behalf of the defendants, and Mr Reed in particular, that Mr Bamgboye was really, in effect, an employee at A n R Studios and that consequently, even if he did contribute to the extent of being able to claim any copyright in works, he had done so in the course of being an employee and consequently the copyright would still belong to the defendants, or rather in particular I think to Mr Reed.
- The question of assignments, as I have said, is no longer an issue. That is dealt with in section 90 but there has been no point taken as to the validity or otherwise of the assignment made by Mr Bamgboye of his rights to the second claimant, and so that again is not an issue I need deal with.
- I need now go back to the claim in sound recordings. Sound recordings are provided with copyright protection under section 1(1)(b) of the Act, which I have already read in the material part. Section 5(a) of the Act deals with sound recordings and states:
In this part 'sound recording' means a recording of sounds from which the sounds may be reproduced or a recording of the whole or any part of a literary, dramatic or musical work from which sounds reproducing the work or part may be produced regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced."
So we are looking here at a method of recording for reproduction, sounds that have been created elsewhere. Then section 5(a)(ii) provides:
"Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording."
Authorship and ownership of a sound recording is now dealt with by section 9(2) A(a) of the Act. Having provided that the author in relation to a work means the person who creates it in section 9(1), section 9(2) says:
"That person shall be taken to be in the case of a sound recording the producer."
Again, under section 178 we now find the definition of producer, which:
"In relation to a sound recording or film means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken."
So the different is the reference there to the making of a sound recording as contrasted to the creation of a musical work, dealt with in section 9(3).
- Identifying the relevant person is said to be a matter of fact, and I have been referred helpfully to various authorities that deal with that. These show, in particular, that "undertaking these arrangements" effectively means to be responsible for producing the sound recording in the financial sense or generally.
- Mr Harbottle, in his closing submissions, drew my attention to certain authorities giving examples of the way in which the court had approached the question of who had undertaken the arrangements for the making of sound recordings and films, because the same principles obviously apply. He referred me to Adventure Film Productions v Tully  EMLR 376 in which on an application for interim relief, the claimant who provided the funds for a film that was actually shot by others on its behalf, the funds coming from Channel 4, was held to be sufficiently likely to be the owner of a film copyright that a serious issue should go forward to trial. In Mad Hat Music v Pulse 8 Records  EMLR 172, there was a claim that the second defendant owned copyright in a sound recording because, as the first claimant's manager, it had made her available for the recording sessions, although others, namely the defendants, had made other arrangements which included paying for the studio time. It was held again that this raised a serious question to be tried.
- The case I probably found must useful was Century Communications Limited v Mayfair Entertainment Limited . This was a case in which a film had been produced by E on the Chinese mainland, but to do this it had had to bring in assistance from another company known as C, and it was held that even though C was responsible for obtaining the permissions and shooting the film, arrangements for making it had in fact been made by E, since E had initiated its making and organised the activity necessary for its making and paid for it. The particular passage that deals with this is briefly at page 342 of the authority, where the learned judge said:
"Looking at the documents and appreciating that Era Communications could not make a film in mainland China without the help of CCP, it is plain to me that the arrangements necessary for the making of the film were undertaken by Era Communications. There never would have been a film had Era Communications not initiated its making and organised the activity necessary for its making and paid for it. To achieve that purpose they had to invoke the help of CCP and that Era Communications did. CCP made no arrangements, they simply helped Era Communications to make the film. Accordingly, I find that copyrights subsist in the film in that Era Communications was its author and, as is agreed, Era Communications is a body which qualifies for copyright protection. By documents that are not challenged, C is the present owner of the copyright and Era has distribution rights."
So the copyright in the film was given to E in that situation.
- Finally, I should refer to the case of Beggars Banquet Records v Carlton Television  EMLR at 349. A similar question arose as to who had undertaken the arrangements necessary for the making of a film, and it was in that case decided they do include finance, but the question arising is who, in fact, is directly responsible for the payment of the production costs rather than who is the person who might be the ultimate source of the funds. There is a passage in the judgment of Warner J which emphasises that in any case it is a question of fact who, in fact, made the arrangements. At page 361, he says, having referred to two earlier cases:
"To my mind neither of these cases provides more than limited guidance because each of them turned on its own facts ... I would add that in my view the words of section 9(2)(a) must to some extent be construed in the light of those of section 9(1). It has to be borne in mind that they are intended to define the person who creates the film."
The reference to section 9(2)(a) was a reference to the previous version of the Copyright, Designs and Patents Act which did not distinguish between sound recordings and films but included them both in section 9(2)(a). That has now changed in that sound recordings are dealt with separately in section 9(2) A(a), but the same point would seem to arise and Mr Harbottle submitted, and I agree with him, that when Warner J used the words "create the film", he was thinking in terms of creating the physical recording or record of the film or the sound recording and not in terms of creative input, which is the issue in relation to musical copyright.
- 51. There is a question that arises in relation to sound recordings which are copies of previous recordings under section 5(a)(ii) (see above) because plainly in the context of a work that is produced in the way this one was, what happens with the final version is that it is copies of previous recordings that have been made very often of previous recordings. So some issue might in theory arise as to the extent to which sound recording copyright can be claimed in the entirety of one particular version and I will deal with that as necessary.
- Finally, there is a question of performer's rights, which are the rights of somebody who has made a performance. That can be dealt with quite shortly. They are governed by Part 2 of the 1988 Act. They are independent of copyright in the work performed or any sound recording of the work. They are dealt with initially in section 181 of the Act. This Part of the Act confers rights on a performer by requiring his consent to the exploitation of his performance, and on a person having recording rights in relation to a performance in relation to recordings made without his consent or that of the performer. It also creates certain offences.
"In this Part 'performance' means a musical performance,... (b), which is or so far as it is a live performance given by one or more individuals and 'recording' in relation to performance means a film or sound recording made directly from the live recording."
The independence of those rights is set out in section 184. The fact that this is a live performance is important and it is submitted, and I accept, that there is no need for a performance as such to be in front of an audience. It would include performances in the recording studio - see Laddie Prescott and Vittoric: Modern Law of Copyright and Designs, Third edition, paragraph 12.17. There is no concept of a joint performance, and if any performance given by more than one individual the result would seem to be that each performer is entitled to rights in his part of the performance.
- There is no provision in this context dealing with the position with regard to employment, and no issue arises here. First, I do not think this was ever actually pleaded on behalf of the defendants originally, and when the point was put to them they elected not to amend their pleadings because their case rests firmly, as they see it, on the facts of the matter. In that situation issues do not arise as to the position of a performance in the course of an employment. Indeed, it would seem that a performer who is effectively ordered to provide a performance by an employer may retain performer's rights in that situation. However, that is not a matter I need to consider.
- So, against that background, the issues that arise for decision in this case were agreed between the claimants and the defendants in essence to boil down to the following.
Firstly, did Mr Bamgboye make a significant creative contribution to the musical work, "Bouncing Flow", as alleged in paragraph 5 of the Particulars of Claim? Which refers to a contribution to the musical work as follows: 50 per cent contribution to the creation of the drum part, on the basis the first claimant, Mr Bamgboye, and Mr Reed played and programmed the drum part together on a computer using a synthesizer and a sampler; the creation of the leading baseline on a synthesizer, other than a secondary single note baseline; the whole of the synthesized string section, which apart from the vocals consists of the melody of the song, and certain chops, effects, noises and scratches, which Mr Bamgboye contributed to the recording of the composition when he carried out editing work to it on his own computer. Effectively, those are the elements which are claimed to be his creative contribution to the music of "Bouncing Flow" and there is a dispute as to that.
If so, though, the issue then arises as to whether Mr Bamgboye made that contribution in the course of an employment with Mr Reed and therefore, whether Mr Reed still owns the copyright in the music of "Bouncing Flow"? There is, as I have said, now no issue with regard to the question of assignment of any copyright.
- The next issue identified is whether Mr Bamgboye was a person by whom the arrangements for recording the work done in August 2000 were undertaken, as alleged in paragraph 14 of the claim. This states that "Bouncing Flow" was edited by the first claimant at his home on his own computer on 17th August. This process involved the skilled use of an audio software programme to arrange the composition in a logical manner and to increase audio dynamics by adding effects, noises to the composition as well as the addition of chops and scratches. The first claimant specifically extends the duration of the introduction of the composition and added special effects to give it more impact and excitement. Following the completion of the editing process on 21st August the composition was mastered. Again, that assertion is disputed.
If it is found that Mr Bamgboye did make such arrangments, again the question arises whether he did so in the course of an employment with Mr Reed.
Then, further issues arise as to whether Mr Bamgboye did give a "performance" as alleged in paragraph 17 of the Particulars of Claim. Here Mr Bamgboye claims performer's rights in that, in the course of making the sound recording, which has been identified as the final version of Bouncing Flow taken away by Mr Reed on 21st August, he is alleged to have performed the following parts of the composition which were recorded on the sound recording, approximately 50 per cent contribution to the creation of the drum part; the creation of the leading baseline on the synthesizer and the whole of the synthesized string section which constitutes the melody. That is said to have been his "performance".
- So the main issue is plainly the first, which comes down to whether authorship of the music of "Bouncing Flow" -- and I emphasis that none of this concerns the vocals -- is the sole authorship of Mr Reed or is in part that of Mr Reed and in part that of Mr Bamgboye. I should make it clear that in referring to the sole "authorship" of Mr Reed, I am referring to, effectively, the composition of this piece as I would probably naturally call it, but in the industry, as I have said, the relevant "author" is known as the "producer". Similarly, in terms of joint authorship it would be said that the joint "producers" were Mr Reed and Mr Bamgboye.
- This is a matter of fact and I consider the evidence as far as the witnesses were concerned, Mr Bamgboye's evidence was primarily his own evidence. He called Miss Blackman and Mr Ruti, who was the gentleman who was present at one of the sessions, probably the 17th August session, at his house. I did not find their evidence of a great deal of assistance, and Mr Harbottle conceded that really they were of no help to me. Miss Blackman gave evidence mainly as to the way in which A n R dealt with people, because she felt that she had not been properly credited for her work in the same way as Mr Bamgboye had not been, but her complaint was perhaps a little mistaken. She had received credit under the title of "Rhythm n Blues". Her complaint was that her vocal name of Lena Renvoir had not been acknowledged on the "Flava of the Underground" disc. This may seem a little trivial and, indeed, as far as the defendants were concerned, it was suggested that it really was nothing much to complain about because she certainly had been credited. However, to a young performer on the way up, it might well be that this was a matter of importance. Nonetheless, it is not something that assists me greatly, if at all, in determining who was the author of Bouncing Flow itself.
- Mr Ruti, although present on 17th August, heard Mr Bamgboye working on something. However, when he was questioned about it, it seemed that what he had heard was Mr Bamgboye actually working on a complete remix of "Bouncing Flow", which involved taking the vocals and putting entirely new music to it and was not, therefore, on the face of it, part of the eventual musical work sound recording that is in issue here.
- Mr Reed, as well as giving evidence himself, called Mr Brown and Mr Wilson to give evidence. Mr Brown was not present at any of the recording or editing sessions, apart from those involving the vocals. Mr Wilson did go to one of the sessions at Mr Bamgboye's house. He supported Mr Reed in giving me evidence that in his view Mr Bamgboye was not doing anything but following Mr Reed's instructions in the course of this occasion. Of course, he appears on the same side in support of Mr Reed, so perhaps it is not surprising that his evidence should be tending in this direction.
- Mr Braithwaite gave evidence and his evidence seemed to be intended to show that, really, Mr Bamgboye could not have had creative input into this piece because he simply was not capable of it. Mr Braithwaite was a very confident, smooth and personable witness. He really lost no opportunity of saying how poor Mr Bamgboye's performance at the studios had been, although he himself had only dealt with him for the first few weeks or months. I formed the view that he was plainly a partisan witness and I did not really find his evidence of any great assistance except, I readily acknowledge, in explaining to me some of the technical terms in the pop music industry with which I had not been at all familiar. Mr Rosales gave evidence and I found him to be a broadly truthful witness, although he had, no doubt, an eye to the fact that most of his work is done with Mr Braithwaite with whom he is still in contact and with whom he still works. Everybody thinks very highly of Mr Rosales' skills. However, he could not really help me greatly as to what had happened. Although he was inclined to regard Mr Bamgboye as still having been largely a trainee engineer, he could not really say whether, or at what point, Mr Bamgboye would have progress beyond that sort of description. However, that, of course, is a matter of subjective appreciation and judgment in the mind of the person making that judgment.
- The main elements of the case depend on the direct conflict of evidence between Mr Bamgboye and Mr Reed. Mr Reed and, indeed, all the other witnesses on his behalf, denies there was any collaboration between him and Mr Bamgboye. His other witnesses say they never saw any evidence of this and indeed they did not believe it could be. Their view, however, was that being a "collaborator" really depended on some kind of prior agreement. They felt that they could only be "collaborators", i.e. that that word was only appropriate, if there had been at least some kind of oral arrangement to this effect. I understand their point of view but really that is not the point. One has to use some word to describe a relationship and it may well be that "collaborator" is the only word available to describe two people working together. However, the point in issue here is simply the fact of who provided to the creative input and the making of the arrangements for getting the creative input into the piece that was recorded. It really is not, therefore, a question of whether Mr Bamgboye would have been thought of as a "collaborator", in the way that word might normally be used in the industry. The question is, was Mr Bamgboye, in fact, instrumental in having creative input into the music as it became created in the version that finally became recorded?
- This is obviously a matter of impression from the evidence. It is quite plain to me that feelings run very high in this case and I have allowed for that in my appreciation of the witnesses. In the end, therefore as I have said, it is very much a matter of the conflict between Mr Bamgboye and Mr Reed.
- Mr Bamgboye gave evidence well. He is clearly an intelligent young man. He answered questions carefully. He frequently spotted and was careful to correct, any ambiguities or problems in the questions that he was being asked, or in the way he was being invited to give evidence. I was impressed by the fact that he often answered questions in a way which was plainly adverse to his case. He had no hesitation in accepting, firstly, that certainly ideas were Mr Reed's, and, secondly, if Mr Reed had not liked what he heard, it would not have been in the finished piece. He was also dignified and restrained against what was sometimes a somewhat patronising style of questioning from Mr Reed for example in ordering him to "speak up". I might have wondered if his dignity and restraint was a put up front, except there were one or two occasions when he did actually lose this and let fly a little, showing a degree of spirit and his feelings beneath. I found that this gave his evidence the ring of honesty. It also supported the view I had formed, that he would be quite capable of being moody and losing his temper and flying off the handle with Mr Braithwaite.
- As against this, there was Mr Reed. He is a gentleman full of panache and bravura. He gave me a long history of the case and, even allowing for the fact he was presenting the story without the medium of a questioner, I had the impression I was being given a confidently rehearsed show presentation. That does not necessarily mean that he was not telling the truth. It seems to me though, as a question of reliability, that as a result of a lot of his evidence being given rather more on the basis of effect, he had a less scrupulous regard for perfect accuracy in trying to help me than I felt Mr Bamgboye was displaying.
- In this case, the defendants say that I should not believe Mr Bamgboye's evidence because his motive is that, having seen this piece, "Bouncing Flow", for which he did nothing more than really be an engineer, has had some commercial success, he has his eye to seeking to gain something out of it. On the other hand, Mr Bamgboye says that really this case has been dogged by an attitude from the defendants that he has demonstrated ingratitude to them. He having been, he admits, a trainee at their studios and having learned much of what he knows from them, they somehow have the idea that for him now to seek to assert that he has any rights to the material he has created is impudent and out of order. This underlying attitude is what has really caused the problem because his contribution simply has never been recognised.
- Mr Reed criticised Mr Bamgboye for inconsistency in his evidence, suggesting that I should not believe him because of discrepancies between earlier solicitors' letters that were written. For example, originally he was claiming a half share apparently in the entire piece of Bouncing Flow rather than only the music. It was also pointed out that some of the other ways in which his input was described, have turned out to be rather different in later evidence.
- I have looked at these inconsistencies and I have considered them. Mistakes such as these do often get made, firstly, when people may not be thinking accurately, or, secondly, when they are trying to convey ideas to others who are writing down statements and who are interpreting the things that they say. I do not find that the inconsistencies, if such they be, in Mr Bamgboye's evidence cause me to have any great concern for his veracity. Nor do I find that they are sufficiently great that I have misgivings about relying on the reliability of his account in the evidence he gives.
- Mr Reed, it was pointed out in response, also gave slightly differing accounts of how "Bouncing Flow" came to be constructed. For example, he was not clear, in relation to this first, and probably the main, occasion on which the work was constructed as to when, in fact, the drum parts had been completed, and how far they had been completed before Mr Bamgboye came in. It was also suggested that his oral evidence in chief was somewhat different from his evidence in cross-examination, as to whether strings and baselines had, in fact, been added to drum patterns before Mr Bamgboye's arrival.
- At the end of the day, I have come to the conclusion that I prefer Mr Bamgboye's evidence on this topic. There are three further points which I have taken into account in concluding that he did have creative input, as he says, into this piece. The first is the question of capability. As I have said, there was a good deal of evidence from the defendants that Mr Bamgboye was merely an engineer. I cannot rely on Mr Braithwaite's evidence to this effect because to my mind it was patently self-serving on the defendants' part, and he really was not closely acquainted with what Mr Bamgboye was doing by the time we are concerned with in 2000. "Flava of the Underground", to my mind, tells against Mr Bamgboye not having talent and, indeed, against Mr Braithwaite's not accepting this. I do not rely too much on the publicity material that Mr Braithwaite authorised because, as I have said, that is bound to say nice things about the work on the particular disc, and Mr Braithwaite did not write it. But I find that it is a telling point that the very first track on "Flava" was one of the tracks that Mr Bamgboye and Miss Blackman had composed entirely together.
- Mr Braithwaite's evidence was that this was simply a random selection; this was a disc being put out to excite interest and it did not really matter what went first. It was put to him that, in fact, logic would suggest that he would put his best work first. His response was that the logic of putting best work first would have meant that he put either his own work or Fidel's work first on this disc, which he did not do. I do not accept that the placing of this track was a random selection, nor do I accept Mr Braithwaite's point in response. Mr Braithwaite had a name and, therefore, having his work further into the disc would still have meant that those who were interested in it could be expected to pan through and listen to what he had produced.
- However, it does seem to me to be obvious that it is very important that the very first track that you put onto a disc should excite the interest and enthusiasm of the listener and, therefore, you do not put second grade work, or poor work, on the first track on a disc; you put something that you think is good. Mr Braithwaite chose, I think it was, "Grooving Me" for this spot. This seems to me to demonstrate that he did, in fact, find that Mr Bamgboye had a talent. Mr Rosales' evidence in still calling Mr Bamgboye a trainee engineer was to my mind not particularly to the point. I find it significant that, in fact, Mr Bamgboye did have the talent that put his work first on this particular disc.
- The second matter is the question of playing the keyboards, the melody line. Whereas to me the melody line might seem to be the most important part of a piece of music, I accept that, in the dance industry, other aspects, such as the rhythm, and the drums, and the effects that go into it and are created, will have a great deal of importance and perhaps equal degree of importance with the melody. Nevertheless, the melody line, and the baseline are significant fundamental parts of the piece and the question is, who composed those?
- As far as keyboard playing is concerned, Mr Reed initially said that he was as good at playing keyboard as the next man. However, he was invited to demonstrate how he could pick out the baseline in the piece, and when he did so it was apparent that he had some difficulty doing so immediately. I let him carry on doing so until he had more or less managed to pick out the eight bar piece, and it took him two or three minutes. To be fair to him, I accept that if he had been at ease in his own recording studio, not under the glare of the spotlight in court, and with his own equipment, he would have done so rather more quickly and rather more readily, but nonetheless it was apparent to me that he was doing this entirely and rather awkwardly, by ear. He had, as he accepted, no formal musical training. His flare, I find, is far more in the effects context. I noticed, for example, that when looking at one of the Logic Audio files that sets out the music which he was apparently humming as the baseline, he in fact hummed a slightly different version -- one in which the notes did not rise in the second part -- rather than the version that he was looking at. Also when he demonstrated the baseline, playing on the witness desk with his fingers as to how the music went, he was, in fact, playing the first part of the theme the wrong way up. He does not have musical training and, therefore, whilst I quite accept he could get to the simple baseline by ear on a keyboard, I am not at all convinced that he could ever have got to the rather more complicated -- I think it is called the "busy base" -- part of the composition. I do not find it credible either, that he would have taken the time to doggedly amend notes on the computer to produce the subtly different versions of the notes, i.e. the lengths of the notes, that one sees on the printout of recording produced by the Logic Audio files. To amend their length to such a minute degree as is evidenced from what is actually recorded on the tape would have been extraordinarly pedantic and tedious. I also rather doubt if he could have achieved the arpeggio line on his own, as it involves a very quick movement of intervals through various notes. I find that this evidence suggests clearly that these items were played in by human hand, and by somebody with at least a degree of formal musical training to enable them to do so. That can only have been Mr Bamgboye.
- I find, therefore, that I am perfectly satisfied that these lines that have a melody to them, whether in the base or in the string part were, in fact, played in by Mr Bamgboye. I also believe Mr Bamgboye when he says that this musical idea is an idea that came from him, that he played it and volunteered it and that Mr Reed liked it and therefore it stayed in. I am not satisfied that what was happening was that Mr Reed was humming some kind of basic tune to Mr Bamgboye who was therefore acting as no more than a kind of engineering scribe in recording it into the machine.
- The last thing that has confirmed me in the view that Mr Bamgboye did have creative ability, and was displaying it, is the very fact that Mr Reed wanted Mr Bamgboye back after the row in April 2000. While I find that it is certainly the case that the defendants in their community will do things to help other people, I do not think that they do something if there is absolutely nothing for them in return. If Mr Bamgboye really was not contributing something to the studios, I do not believe that Mr Reed would have thought it worthwhile making the necessary peace with his brother to get Mr Bamgboye back. I do not think this would have happened unless Mr Bamgboye had been extremely useful to Mr Reed. Mr Reed could easily have got other engineers to do his engineering work for him. I conclude that Mr Reed wanted Mr Bamgboye back, not because Mr Reed was doing a novice performer a great big favour by letting him be around, but because he actually found him useful and helpful because of his ideas -- and these ideas were not confined merely to engineering because Mr Bamgboye was at times, in his enthusiasm, volunteering original ideas which Mr Reed was then able to take and make use of. Consequently, they were indeed, on occasions, working together.
- I therefore find that Mr Bamgboye did contribute the melody, and I also find that he contributed significantly to the drum pattern and crashes, as he said. I find he contributed some of the effects at his house. He, therefore, did have significant creative input into the making of the musical piece that was recorded as "Bouncing Flow".
- However, I do not find that this creative input is as great as the 50%, which he claims. He has more musical and original creative talent in this regard than he has been given credit for, but Mr Reed certainly has considerably more experience, many more ideas and more flare, I find, as to the possibilities of effects, embellishments and general arrangement of the piece. I do not underestimate this. As I have said, it plainly contributes hugely to the character of the music. Mr Reed, for example, put in the "wobble base" and it was Mr Reed's ideas to put in the chops which are very distinctive. Indeed, Mr Bamgboye acknowledged that they were Mr Reed's idea. I find that they all were. Mr Bamgboye also acknowledged that ideas only stayed in if Mr Reed liked them and not if he did not. It follows that the ultimate selection of the ideas on the track was Mr Reed's and not Mr Bamgboye's, either because they were Mr Reed's in the first place, or because if they were Mr Bamgboye's they were selected, in effect, by Mr Reed. Mr Reed's contribution was, therefore, greater. In the end, I have come to the conclusion on the evidence that their respective contributions are fairly represented as one third on the part of Mr Bamgboye and two-thirds on the part of Mr Reed.
- I want to make it clear what this means. Mr Reed was affronted, he told me, at the idea that Mr Bamgboye was accusing him of having been deliberately out to rob Mr Bamgboye of his "birth right", as he put it. That is not what I am finding. Mr Reed may well have come genuinely to believe or convince himself that Mr Bamgboye did not really contribute anything, in his own enthusiasm of moving into the process of producing "Bouncing Flow". He is very much into the pop music world, he is a showman, and he is very forward and ebullient. In his enthusiasm for producing a successful piece, it may well be that he has looked back and convinced himself that it was he, and only he, that actually contributed to it, and this led him to fail to examine critically the extent to which Mr Bamgboye had in fact contributed. This would have been reinforced by the fact that, subsequently, having produced this piece that turned out to attract interest and be successful, it would be difficult for him to admit to others that he had had any significant help from Mr Bamgboye. This is not deliberate theft, but it is really a process of rationalisation. Mr Reed may have convinced himself that something could not be the case, but I find that it was.
- The case has also, indeed, suffered from another aspect. Mr Bamgboye was young -- he was only approximately 18 years old at the time this was happening -- and Mr Reed is about 12 years older than he is and Mr Braithwaite some 17 years older. There was, I find, the kind of culture that Mr Bamgboye was a junior, which brought about perhaps a tendency to deny his rights. Mr Bamgboye, as a junior person, ought to be grateful for the teaching and the opportunity that he was receiving and, therefore, it was audacity for him to claim ownership of any part of "Bouncing Flow", beyond any recognition which those to whom he owed so much were graciously willing to concede to him. However, that is not the legal position. It is a question of objective fact whether Mr Bamgboye collaborated with Mr Reed in producing "Bouncing Flow" or whether he did not. I have found that as a matter of fact he did, but only to the extent that I have indicated.
- I then turn to the question of employment. I need not take long on this. I am perfectly satisfied that there is no question that Mr Bamgboye made this contribution in the course of an employment. In the first instance, it was suggested the arrangement was not such as there was any intention to create legal relations at all. This seems to me to have been the case. If Mr Bamgboye turned up at the studios he would be able to learn, people would be there and they would be willing to teach him, but there was no obligation on him to turn up, and there was no obligation on them to give him work. There was no obligation on him to attend; if he did he did. There was no job description of duties expected of him. He was not given a wage. It was suggested that the availability of the studio in downtime for his own purposes was effectively the equivalent of a wage, but I do not find that that was in any way indicative of a contract of employment which is what is required. It is no different really, perhaps, from the young girl who goes down to the local riding stables in order to learn to look after horses and is also allowed to take them out. This is not employment, it simply is not that kind of relationship.
- Neither was it, I find, a relationship in which it was obviously implied, as a matter of quasi contractual or contractual relationship, that Mr Bamgboye would not be claiming to have any copyright in any work he did, but would surrender this to Mr Reed or the studio. In relation to an employee under a contract of employment, this is made statutory by the Act. It may be that this is partly for the avoidance of doubt, since it could be argued that if a work is created in the course of employment the employee is actually doing this on behalf of the employer in any event. However, in my judgment, unless it is clear, apart from employment, that there is a contract or similar arrangement, such as a commission, under which one party surrenders contractual rights to another as a matter of either express term or very clear implication the normal position applies. Therefore, unless it is perfectly clear that a senior person involved as the quasi employer is intended by both parties to be entitled to the copyright in any work produced by the junior person, the junior person is entitled to his copyright. I find that Mr Bamgboye had not, and did not, surrender any rights he had in his own original work, and he was not an employee from whom such rights are divested under section 11(2) of the Act. This defence, therefore, fails.
- I turn next to the question of the sound recording. I have found this rather difficult. It depends on the question who it was who undertook the necessary arrangements for the making of the sound recording. We are looking here at the question of the producer of the sound recording, and I remind myself of the words of section 178 of the Act in relation to a sound recording or a film:
"The person by whom the arrangements necessary for the making of the sound recording or film are undertaken."
- The facts are really pretty much common ground. Mr Reed brought the tape of the previous version of Bouncing Flow to Mr Bamgboye's parents' house. There was obviously an appointment arranged. It seems to me to be fairly obvious that Mr Reed must have said to Mr Bamgboye, "Let's do this work at your house" so that he would have made the arrangement, rather more than it being likely that Mr Bamgboye said to Mr Reed, "I want to do more work on this, bring the tape around to my house." This is not least because Mr Bamgboye's very fair evidence was that he would have thought that Bouncing Flow was really complete by the time of the work that had been done at the studios, but that it was Mr Reed who was not satisfied with it and wanted to do more. The tape was played on A n R's machine that had been brought to Mr Bamgboye's parents' house, but it was recorded onto a computer which was, in effect, Mr Bamgboye's, although really it was his parents' computer. I do not think there is any difference as far as that point is concerned. It was then edited and mastered with Mr Bamgboye controlling the actual controls, although Mr Reed who was sitting there, may very well have had some dispensing part in this. A n R's mixer was not required or used, and the microphone was not required or used.
- In so far as he supplied the tape and the DAT machine to play its major musical component Mr Reed seems to have made those arrangements. Indeed, supplying the tape seems to me to be quite similar to supplying the singer in one of the earlier cases I have referred to.
- In so far as Mr Bamgboye supplied the premises and the computer, it is said that he made the arrangements. There is the possibility, therefore, of a joint making of the necessary arrangements. So the question I have to ask myself is, was Mr Bamgboye making those particular arrangements independently as part of a kind of partnership joint arrangement, so the answer to the question: Who made the necessary arrangements for the recording, is that he and Mr Reed did it together, or was he really making arrangements, as requested by Mr Reed, so that in the end the substance is that Mr Reed did himself make the arrangements albeit to an extent through the medium of Mr Bamgboye as his agent? It seems to me the question can be summarised in this sense: Looking at the cases, and remembering that it is always a question of fact. Who was it who got the recording made (to put it in a colloquial way)? It is a matter of fact and degree, and I find that at the end of the day the answer is that the arrangements were made or undertaken, by Mr Reed.
- The cases are often concerned with financial arrangements. No payments were involved here, so the real question, is who instigated the relevant recording and organised the activity necessary for its making? Mr Bamgboye has agreed that he would have regarded Bouncing Flow as finished, and it was Mr Reed who decided that further editing, recording and mastering was necessary. I find that it was Mr Reed who arranged, as it were, to get Mr Bamgboye to make available the house and the equipment. If this had not happened, it could have been done elsewhere. If that had happened it would have had to have been done by payment, but nonetheless the moving force, the person who got this recording made at the end of the day, seems to me to have been Mr Reed in substance, rather than it being a joint operation by Mr Reed and Mr Bamgboye.
- As I have said, I found the Era Construction, Century Communications v Mayfair Entertainment case helpful in this regard. Without Mr Reed there would not have been the recording because he instigated everything, and the arrangements that he got Mr Bamgboye to make were subsidiary. It is right to say that Mr Bamgboye was assisting in the recording and, indeed, possibly even contributing to parts of the recording, but I find that that was a part of the artistic, or creative element of the creating a musical piece, rather than part of undertaking the necessary arrangements for the sound recording as such. In so far as Mr Bamgboye did have any input that might be described as that, it was done at Mr Reed's behest to this extent that it was even anything that he did on his own behalf, perhaps by asking his father to let them have the computer in the relevant room, it was really not significant enough, and would have effectively been done as part of having been asked by Mr Reed to get the premises, and so forth, into position to make the final recording which Mr Reed was organising.
- As I have said, I have resisted because I do not think it is right, any temptation that there might be to look at the separate parts of what was done and simply say there were jointly contributable arrangements. I have asked myself, rather, whether this recording would have happened if Mr Bamgboye had not been involved, and my answer to that is that it would have happened somehow -- although possibly not in quite the same ultimate form, bearing in mind that he had some input into the actual structure of the recording -- but in principle a version would have been produced. Mr Bamgboye was not crucial to the administration of getting this song recorded, although he be said to have had some part in it. On the other hand, would it have happened without Mr Reed's involvement? The answer is "no".
- I would add for completion, that insofar as section 5(a)(ii) would prevent the arising of a copyright in the sound recording of the final version of "Bouncing Flow" because, or insofar as, it was a copy of a sound recording of an earlier version of "Bouncing Flow" the position is even clearer, as the arrangements for making all such earlier versions were even more plainly undertaken by Mr Reed.
- Now on to performer's rights. I have already made it quite clear that I am quite satisfied that Mr Bamgboye played the base melody and the busy base and the octave parts on the keyboard into the computer. Was this a performance? I find that it was.