Why Duran Duran May Remain Hungry Like The Wolf

Last week’s High Court decision in the case of Gloucester Place Music Ltd v Le Bon & Ors [2016] EWHC 3091 (Ch) (02 December 2016)  has made headlines around the world.  On the face of it, the dispute was straightforward enough.  The members of the group had entered into agreements (the Music Publishing Agreements) in the 1980s and 1990s which assigned the copyright in songs composed and written by them to a company now called Gloucester Place Music Ltd.  In return, they received advances and payments of royalties.  The songs included many of Duran Duran's best-known songs, including "Girls on Film", "Rio", "Hungry Like The Wolf" and "Is There Something I Should Know?"  Today, Gloucester Place Music is ultimately owned by Sony/ATV.

Duran Duran were claiming that they were entitled to regain the copyright in these songs on the basis of a US law which gives artists the right to terminate assignments of copyright after 35 years have elapsed.  The group had served notices to this effect and the court was asked to rule if these notices were valid and effective.

Under English law, the duration of copyright in original musical works lasts for 70 years from the year in which the author dies.  The Music Publishing Agreements were expressed to be subject to English law and gave the English courts exclusive jurisdiction over them.  The members of the group had assigned the copyright in these songs for their full term.  The question for the court was did the provisions of section 203 of the United States Copyright Act 1976 override what had been documented in the Music Publishing Agreements?

In his judgement, Mr Justice Arnold commented on two relevant areas of English law.  The first was the concept of non-derogation from grant.  This has developed in landlord and tenant law and its essence is that you cannot take away with one hand something you have given with the other.  It is a concept which can apply more widely than just to real property situations and in this case, could be relevant to the intellectual property which exists in copyright.  The second area was how a contract should be interpreted by the courts.  It is well established that the courts will apply the meaning that the contract would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.  He then went on to note that the background knowledge can include knowledge of the relevant law. 

Perhaps unsurprisingly, the Music Publishing Agreements did not explicitly address section 203 of the United States Copyright Act 1976.  There was no mention of it anywhere.  While Duran Duran argued (through their barrister, of course!) that their assignment of copyright was inherently subject to the US law right of termination, the opposing argument was that in the absence of any express reservation by the group of the right of termination under section 203, the exercise of that right was precluded.

The Judge came down narrowly on the side of Gloucester Place Music.  In his judgment he seemed to have placed most store by the fact that what a reading of the contracts would have conveyed to a reasonable person having the relevant background knowledge (i.e. including knowledge of Section 203 of the United States Copyright Act 1976) was that the parties' intention was that the entire copyrights should vest, and remain vested, in Gloucester Place Music for the full term of the copyrights.  For now, all of the rights to these songs remain with Gloucester Place Music until 70 years after the death of the band members.  He did, however, say that the arguments were finely balanced and he had reached his conclusions “not without hesitation” so it is possible we could see an appeal of this in the near future.

Posted on 12/08/2016 by Ortolan

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