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Intellectual Property Enterprise Court
You are here: BAILII >> Databases >> Intellectual Property Enterprise Court >> Minder Music Ltd & Anor v Sharples  EWHC 1454 (IPEC) (20 May 2015)
Cite as:  EWHC 1454 (IPEC)
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INTELLECTUAL PROPERTY ENTERPRISE COURT
Strand, London, WC2A 2LL
B e f o r e :
SITTING AS A DEPUTY ENTERPRISE JUDGE
| (1) MINDER MUSIC LIMITED
- and –
The Second Claimant in Person
Mr Daniel Burgess (instructed by Northrop McNaughton Deller) for the Defendant
Hearing dates: 24-25 March 2015
Crown Copyright ©
Miss Recorder Michaels:
a. a declaration that Minder Music owns a 33.34% of the copyright in the Album Version and that Ms Adamson owns 66.66% (or such share as the Court shall determine);
b. a declaration that no part of the copyright is or was owned by Mr Sharples; and
c. an inquiry as to damages.
Mr Smith made three witness statements and was cross-examined at some length.
Mr Burgess, on behalf of Mr Sharples, suggested that I should attach little weight to Mr Smith's evidence because it had been drafted for him by Mr Fogarty, the director of Minder Music. Mr Fogarty had run the proceedings on the company's behalf without the benefit of solicitors and with only intermittent help from counsel, who was instructed directly by Minder Music. In an e-mail of 5 December 2004, Ms Adamson said to Mr Fogarty that she recalled him stating that Mr Smith "would sign anything." Mr Burgess suggested that this indicated that Mr Smith's witness statement was not reliable evidence. However, I do not think much reliance can be placed upon that throwaway remark made by Ms Adamson in the course of some rather acrimonious correspondence with Mr Fogarty.
Mr Burgess also submitted that Mr Fogarty's approach to producing witness statements had been shown to be unreliable because he had drafted a witness statement which Mr McMahon had refused to sign and Mr McMahon subsequently produced a rather different statement on behalf of Mr Sharples. I do not accept that Mr McMahon's refusal to sign the draft exhibited by Mr Fogarty reflects badly on Mr Fogarty, as the draft was produced by Minder Music's Californian attorney, not by Mr Fogarty himself.
Mr Smith stated in his oral evidence that Mr Fogarty wrote down what he (Mr Smith) told him. I see no reason not to believe that evidence. In the circumstances, I do not accept that I should treat Mr Smith's witness statement with any particular care because it was drafted by Mr Fogarty rather than by a solicitor.
I found Mr Smith to be a truthful witness, who was frank about the vagueness of his recollection of some of the events from the relevant period in 1998 to 1999 but was otherwise clear about certain fundamental matters which I discuss below.
Ms Adamson made four witness statements and was also cross-examined at some length.
Mr Burgess again expressed some concern that her witness statements had been drafted for her by Mr Fogarty. In particular, the Defendant raised concerns that Ms Adamson stated in her witness statements that Mr Sharples had not made any contribution to writing the Song, but had accepted in correspondence relating to the Settlement Agreement (and again in the witness box) that he had added string parts to the music of the Album Version. In my view, that apparent inconsistency did not suggest that Ms Adamson's witness statements were untruthful, but instead reflected her view (broadly shared by Mr Smith) that "the Song" was really the Original Song, and later versions were no more than arrangements of it, not separate copyright works.
The Defendant also pointed to differences between Ms Adamson's 2nd witness statement and her 3rd and 4th witness statements as to the circumstances in which she entered into the Settlement Agreement. In my view, those later witness statements significantly expanded on or emphasised her initial allegation that she had been 'unfairly pressurised' into signing the Agreement and were put in higher terms than her oral evidence. In the circumstances, and in the light of the contemporaneous correspondence, I consider that her evidence in relation to the Settlement Agreement must be treated with some care, and I discuss the reliability of that evidence further below.
Mr Lennard was the director of Artful Records and involved in the recording of the Album in 1999. His witness statement was served in reply shortly before trial and I gave permission for Minder Music to rely upon it in order to respond to the witness statement of Mr McMahon which I mention below. Mr Lennard appeared to be a reluctant witness; he gave his evidence in an off-hand manner which did not inspire confidence. On the other hand, when it was suggested to him that Mr Fogarty had drafted his witness statement, he was adamant that it accurately represented his recollections as relayed to Mr Fogarty, and I accept that his evidence was truthful.
Lastly, Mr Fogarty gave evidence on behalf of his company. He had no direct involvement with any of the relevant facts from 1998/1999 and his evidence was therefore of limited relevance to the issues before me. He produced a short witness statement shortly before the trial, relating to Mr McMahon's witness statement and the unapproved draft mentioned above, and Mr McMahon's unavailability to give evidence. He was cross-examined about this, but it does not seem to me that this reflected badly upon his credibility.
No further witnesses were called on behalf of Ms Adamson.
The Settlement Agreement
(1995) 69 P. & C.R. 298 (PC) of the following summary at p 303 (footnotes omitted):
"(1) It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that "one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say, in a way which affects his conscience": Multiservice Bookbinding v. Marden;
(2) "Unconscionable" relates not merely to the terms of the bargain but to the behaviour of the stronger party, which must be characterised by some moral culpability or impropriety: Lobb (Alec) (Garages) Limited v. Total Oil (Great Britain) Limited;
(3) Unequal bargaining power or objectively unreasonable terms provide no basis for equitable interference in the absence of unconscientious or extortionate abuse of power where exceptionally, and as a matter of common fairness, "it was not right that the strong should be allowed to push the weak to the wall": Lobb (supra);
(4) A contract cannot be set aside in equity as "an unconscionable bargain" against a party innocent of actual or constructive fraud. Even if the terms of the contract are "unfair" in the sense that they are more favourable to one party than the other ("contractual imbalance"), equity will not provide relief unless the beneficiary is guilty of unconscionable conduct: Hart v. O'Connor applied in Nichols v. Jessup;
(5) "In situations of this kind it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely that unconscientious advantage has been taken of his disabling condition or circumstances" per Mason J. in Commercial Bank of Australia Ltd. v. Amadio."
The Canalot Agreement
Mr McMahon's authority to make the Canalot Agreement
"… the general doctrine of apparent (sometimes called alternatively ostensible) authority … is plainly based on the notion of a representation by the principal. The leading case, which is constantly cited, is Freeman & Lockyer v Buckhurst Park Properties (supra) in which Diplock LJ said [at p 503]:"An "apparent" or "ostensible" authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the "apparent" authority, so as to render the principal liable to perform any obligations imposed upon him by such contract. To the relationship so created the agent is a stranger. He need not be (although he generally is) aware of the existence of the representation but he must not purport to make the agreement as principal himself. The representation, when acted upon by the contractor by entering into a contract with the agent, operates as an estoppel, preventing the principal from asserting that he is not bound by the contract. It is irrelevant whether the agent had actual authority to enter into the contract."
…. Use of a more neutral word "manifestation" is probably, because it is less specific, a better formulation of the notion, common to most legal systems but uneasy in its justification, that apparent authority stems in some way from the principal's conduct."
Bowstead continues at 8-013:
"Liability only. Normally, of course, the actual and apparent authority will coincide, and it will be unnecessary for the doctrine of apparent authority to be invoked. But when it is, the full consequences of the agency relationship do not flow, but the doctrine is primarily concerned with the question whether the principle is bound, and the burden of proof is on the person alleging it."
"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".
"All [authors] must therefore make some contribution to the literary, dramatic, musical or artistic form in which copyright subsists. The question is whether the collaborator takes a part in producing the matter which is the subject of copyright, i.e. whether he has contributed the right kind of skill and labour and in sufficient amount. It may [be] helpful to break this requirement down into four elements: (1) the collaborator must make a contribution of some sort; (2) it must have been significant; (3) it must have been original; and (4) it must have been a contribution to the creation of the work. … the skill and labour need not be contributed in an amount equal to that of the other co-author or co-authors and need not be of the same kind, so that, for example, someone whose principal role is to arrange the songs written by his collaborators can be a joint author"
"41 … I was additionally very helpfully referred by Mr Harbottle to the case of Hadley v Kemp  EMLR 589 at 642. At pp.642 to 644 there is a summary of the authorities on joint authorship in the field of pop music from which … 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.
42 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."
"You are burstin' for a pee
So you go behind a tree
Two couples followed safe
That as will be the end"
The Astoria Version instead included the following verse:
"So you go behind a tree
And you're dying for a pee
And a Star Wars police vehicle pulls up."
The Album Version (as transcribed by Mr Sharples) is different again:
"And you're dying for a pee
So you go behind a tree
And a Star Wars police vehicle Paul's off
I say gimme a taxi"
"Well everyone you meet,
In the pubs and on the street
Is touch sensitive
Don't frown and you're a creep
If you smile you're a liar
If you don't say "it's bitter cold"
You're drunken too"
However, the Astoria Version included the first three lines of that verse and then went straight into the refrain repeating the words "I know" and "Hey Hey." The Album Version differed again:
"In the cars or on the street
If you smile you are a creep
If you don't say it's very cold
You are drunk or too old."
- Both versions were in the same key, at similar tempi and with similar instrumentation
- Both commenced with the same guitar riffs
- The riffs were repeated in both versions as instrumental 'hooks'
- Both featured the same chord sequences.
There was however no formal expert evidence on the question of whether the music of the Album version is an original copyright work and Mr Oxendale's informal letter can plainly not be treated as if it were an unchallenged expert report. I must therefore decide the point on the basis of the written and oral evidence and by listening to the three versions of the Song provided to me.