Joint Copyright appeal favours Procol Harum

The recent ruling in the Procol Harum copyright dispute illustrates the dangers of joint copyright. It is a huge practical problem which anyone whose business involves copyright works should pay heed to.

In the case it was decided that Matthew Fisher became a joint author of the musical work for the song ‘A Whiter Shade of Pale’ by composing the distinctive 8 bar melody of the organ solo, including the variation during its second repetition during a recording studio performance. The organ solo was described as "significant and as hugely famous."

So, if you develop a product and another party does further work on it – beware that if their contribution is substantial enough, they could wind up having joint ownership of your work. This could have a number of unpleasant consequences, the most obvious one being protracted litigation. What may not be so well understood is that joint copyright has the potential to kill off your ability to use your copyright work. This is because if you and the other joint owner do not agree on your plans for the work, you are in a stalemate situation, with nobody having the right to exploit the commercial value in the work.

What does it take to create joint ownership? If a work is produced by the collaboration of two or more authors, where the contribution of each is not distinct from that of the other author(s), then there will be joint ownership.

So, for example, if two people jointly write a book, collaborating on all the chapters, researching it all - then they are likely to both own copyright in the final work. On the other hand, if they agree to split the workload so that one writes chapters 1-5, while the other writes chapters 6-10, then they will each have copyright over their own separate portions of the book - because their contributions will be separate and distinct. Where there is joint ownership over the whole book the parties would need each others’ consent in order to exploit the work.

So, if one party uses the material commercially without the other’s consent, they would be infringing the other’s copyright. Joint ownership can end up in messy litigation, so whether you are in the music industry, or in technology, or any other sector that generates copyright, it is critically important to sort out the copyright position before embarking on a project. So, my advice is:

1. Avoid the possibility of joint ownership arising as this is asking for trouble later on.

2. Don’t rely on a court of law as your failsafe option. It is far more cost effective to avoid fighting over a product.

3. Always make a point of discussing and agreeing copyright ownership questions in advance. Record your agreement in writing and make sure it is signed by appropriately authorised representatives of both businesses.