Composers - APRA

Co-writers: put it in writing!
Recent case highlights need for written agreements
A recent Federal
Court judgement 1
about a dispute
between a number
of APRA’s writer
members demonstrates
how important it
is for collaborators
and business partners
in the music industry
to have clear written
agreements.
The issue in this case was
who were the authors of two
musical works and whether
both or only one author
controlled the copyright in
the works. The music was
composed for the TV series
The Great Outdoors. There
was no written agreement
between the parties.
One of the authors brought a
legal action claiming breach
of copyright and a claim for
damages for infringement of
copyright. Before this the
parties had submitted their
dispute to APRA’s dispute
resolution procedure 2 .
Judge Wilcox looked closely
at the working arrangements
of the parties, heard evidence
from both composers and
compared their version of
events surrounding the
composition of the musical
works. The Judge also
considered the information
that had been provided
to APRA by each party
and the conduct of each
party in disclosing relevant
facts to APRA. Because the
case turned on certain facts,
what mattered was the ability
of each party to show the
Judge relevant evidence
(such as floppy disks
containing recordings) and
to explain their version of
events truthfully.
The Judge declared that the
composers were joint authors
and owners of copyright. He
found that both parties had
made creative contributions
to the making of the works.
Critically, musical ideas were
supplied by each writer and
were translated into “musical
noises” on equipment by
both of them. The Judge also
found that these ideas and
musical compositions were
incorporated in the final
product. Although one writer
clearly had the first ideas for
the music, the Judge found
these were only “embryonic”
and that the other writer
“made a major creative
contribution” to these
embryonic ideas. These
findings of fact satisfied the
Judge that the works created
were “works of joint
authorship” as defined by the
Copyright Act. 3
As a result, the writer who
had claimed that they were
the sole copyright author and
owner had to:
■ reimburse the other
writer for the delay in
receiving APRA royalties
■ share the copyright
earnings already received
■ compensate the other
writer for the lost
opportunity to be jointly
credited as a composer on
the TV series music
■ pay an amount as
additional damages for a
flagrant infringement of
copyright, and
■ pay the legal costs of the
successful writer in bringing
the legal action.
The Judge accepted that the
“lost kudos” for not being
credited on the TV series
was a “real and substantial”
loss. He said, “Reputation is
critical to a person who
follows a vocation dependent
on commissions from a
variety of clients. Success
breeds success, but only if
the first success is known to
potential clients. To deprive
a person of a credit to which
he was justly entitled is to do
him a great wrong”. The
Judge awarded damages of
$40,000 as compensation.
Could this have been
avoided?
For both writers, this case
may have been avoided if a
written agreement had
outlined the terms on which
they were working together
and what their entitlements
to any royalties would be.
The Judge did find that
one writer tried to verbally
discuss their entitlement to
APRA royalties with the
other writer, but did not get
a clear response and so
sent in an APRA registration
card without the signature
of the other writer. When
APRA received another
registration card that
conflicted with the first, it
advised both writers that
their entitlement to royalties
for the work was in dispute.
Under APRA’s distribution
rules, where there is a
dispute between writers over
entitlement to APRA money,
any money APRA has
allocated is held in suspense.
If you co-write a piece of
work then at the time those
works are being written and
developed, you should
clearly establish with your
co-writers your respective
interests in works created.
The best way to avoid
any ambiguity is to put
the agreement in writing. A
written agreement protects
Marie-Louise Symons
Assistant General-Counsel APRA
both parties because it gives
unequivocal evidence as
to the interests of both
writers and should avoid
later legal wrangles.
If you want more help!
For advice on documenting
your working arrangements,
contact APRA’s writer
services department on
1800 642 634.
For legal advice, contact:
■ Lawyers experienced in
music copyright law. The
Law Society in your state can
refer you to a suitable lawyer.
■ The Arts Law Centre of
Australia.
Tel: 02 9356 2566
Fax: 02 9358 6475
http://www.artslaw.com.au
■ The Australian Copyright
Council.
Tel: 02 9318 1788
Fax: 02 9698 3536
http://www.copyright.org.au/
Both organisations can help
with contract terms and cowriting
issues.
■ Information on contracts
can be found in The Law
Handbook for your state–
available from Redfern
Legal Centre Publishing.
Tel: 02 9698 3066; Fax: 02
9698 3077 or your local or
state library.
1 Prior v Sheldon [2000] FCA 438,
Wilcox J, Sydney, 7 April 2000.
2 APRA has a dispute resolution
procedure, by way of binding referral to
an independent expert, for situations
where writer members disagree on how
royalty allocations should be shared. All
parties must agree to submit to the
procedure. (Distribution Rule 7.06).
3 Section 10 of the Copyright Act 1968
provides that a work of joint authorship
is a work that has been produced by the
collaboration of two or more authors and
in which the contribution of each author
is not separate from the contribution of
the other author.
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APrap