Previously in this bulletin, we have commended Ed Sheeran for promising in his song, The Man, that he would be writing his will before he was 27. After all, ensuring that your personal legal affairs are in order is often the best way to prevent disputes arising further down the line. Here we look at some critical steps to protect and regulate the copyright in artistic works- particularly where the work has been created with some element of collaboration.

In a similar vein, taking steps to protect and regulate the copyright in artistic works when they are created is recommended as it can help to clarify who owns the rights, and how they can be used commercially. Copyright is the fundamental form of intellectual property relevant to most musical or artistic works and it can be a valuable asset, protecting an artistic work throughout the artist's life and for a period of up to 70 years after their death. However, copyright can be complex and there can be different layers of rights in artistic works. For example, copyright can apply to the lyrics of a song, but it can also apply to the underlying music, and a separate right exists in the sound recording of the track.

The same principles apply to books. The 'author' of the work is the person who wrote the book (i.e. the words on the page) but there can be other copyright that exist in that work, for example, the person who created the illustrations, or designed the cover. All of these contributors will own different copyright in the end product that is going to be commercialised.

The importance of reaching agreements with the authors of these various rights was illustrated recently in the case of Minder Music Limited v Steven Sharples.

Joint ownership of copyright

The case centred on copyright in the song Touch Sensitive, which was first recorded by The Fall in 1998. The music was written by band member Julia Adamson and the lyrics were written by frontman Mark E. Smith. Mr Smith assigned his rights in the lyrics to the publisher Minder Music, and the parties reached an agreement that the rights for the song should be split one third to Minder Music (as assigned to them by Mr Smith) and two thirds to Ms Adamson.

The defendant, Mr Sharples, was asked to produce the band's album which included a version of Touch Sensitive. He claimed that he entered into a verbal agreement with the band's publicist, who asked him to re-write the song for the album, in return for a one third share in the copyright of the re-worked album version. A dispute then arose regarding the royalties that accrued from that re-worked version of the song and the Court was asked to decide who owned the copyright. Minder Music claimed that it owned one third of the copyright, and that the other two thirds were owned by Ms Adamson, in line with the original version of the track. According to Minder Music, Mr Sharples had no copyright in the album version. The publisher said that Mr Sharples' reworked version of the track did not make a sufficient contribution to the original song to merit protection, and that the agreement with the publicist was irrelevant as the latter was not authorised to enter into a contract on behalf of the band.

In relation to the first issue, the court decided that there was no valid agreement between Mr Sharples and the band's publicist, on the basis that the publicist did not have the authority to bind the band.

The court then considered the second issue of whether Mr Sharples was entitled to a share in the copyright of the album version of the song (and thus the royalties), on the basis that he was a joint author of that version.

In that regard, the court held that Mr Sharples' contribution to the music in the album version of the song, which he had reworked by adding string sections, meant that he was a joint author and was therefore entitled to joint ownership of the copyright in the song. According to the court, his contribution was properly reflected by a 20% share of the copyright in the album version.

What can artists do to protect their position?

This case highlights the difficulties in establishing ownership of copyright in an artistic work when there is no clear agreement. In order to qualify for protection on the basis of joint authorship, a party's contribution must add value to the copyright work. There is no requirement that it adds the same amount of value as that of the other copyright owner or owners, as any differences in that respect can be reflected in their percentage shares. However, when a dispute arises, the existence of copyright and the percentage share that each joint owner should own may have to be decided by a court.

The best way for an artist to protect their position in terms of copyright is to enter into a written agreement with any other joint owners who may have a claim to the copyright in the work. The agreement should include clear provisions on the percentage share which each party owns in the work and the percentage of the royalties that they are to receive.

It is also important to bear in mind that where a work is jointly owned, a unanimous decision of the joint owners is required before the work can be commercially exploited. If there is a poor relationship between the joint owners then there may be a risk that one of them disagrees with the decision to commercialise the work, or the way in which it is to be commercialised, and blocks any attempt to do so. Again, a written agreement could avoid such a dispute by clearly setting out the parties' rights to exploit the work commercially.

In short, a written agreement is the best way to give you peace of mind and let you get back to enjoying the music.

If you have any questions regarding your musical rights, then please get in touch with your usual Brodies contact.