James Mellor QC and James Abrahams recently acted for the defendant in Performing Right Society Ltd v B4U Network (Europe) Ltd [2012] EWHC , a case concerning ownership of copyright in Bollywood film music.
The main issue was whether an assignment clause in agreements between the claimant collecting society and its composer members should be construed so as to effect a present assignment of copyright in future musical works commissioned by third parties as works for hire. An example of one of the works in question was the song Shukran Allah: PRS had previously entered into agreements with two prominent Indian composers, who were later commissioned to write music for a film. The commissioning agreement provided that all copyright was to be owned by the film producer. The producer subsequently entered into a series of sub-licences, the collective effect of which was to grant the defendant permission to broadcast the work in the United Kingdom.
Mr Justice Vos held that the assignment to the film producer failed in light of the prior assignment to PRS. Although the two agreements used different wording, their effect was the same as a matter of construction. Accordingly, the PRS member agreement was an assignment of future copyright under section 91(1) of the Copyright, Designs and Patents Act 1988 (UK) which, being first in time, took priority. The Court held that this construction of the agreement was not commercially absurd. Despite the fact Mr Justice Vos refused permission to appeal, B4U are in the process of seeking permission from the Court of Appeal, in view of the ramifications of his ruling.