Anthony Gordon Instone (Plaintiff) v A. Schroeder Music Publishing Company, Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL |
| Judgment Date | 17 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1017-5 |
| Docket Number | 1970 I. No. 4003 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 1973 |
[1973] EWCA Civ J1017-5
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(On appeal from Chancery Division, Mr. Justice Plowman)
Lord Justice Russell,
Lord Justice Cairns and
Mr. Justice Goulding
Mr. MICHAEL KEMPSTER, Q. C., and Mr. STEPHEN TUMIM (instructed by Messrs. Wright & Webb) appeared on behalf of the Appellants.
Mr. ROBERT GATEHOUSE, Q. C., and Mr. G. BUTLER (instructed by Messrs. Malkin, Cullis & Sumption) appeared on behalf of the Respondent.
The judgment I am about to read is the judgment of the Court.
The first question in this appeal is whether a contract made in 1966 between the plaintiff and the defendant which required the plaintiff composer to confer upon the defendant the entire copyright for all countries in his future compositions during a period of five years with, in certain events, extension to 10 years is one which can be sustained or one which the Court, mindful of the public interest in the freedom of individuals to dispose of their wares - here intellectual property - without undue fetter, should decline to enforce. The plaintiff at the time of the contract was a young man, aged about 21, of good education: he had already composed some light songs of the "pop" variety, some in collaboration with a Mr. McLood, and had entered into individual agreements with music publishers by which he assigned the copyright in an existing composition in exchange for a share in royalties (or in the proceeds of sale of sheet music) earned by its exploitation. He was not depended upon these compositions for his livelihood. As a composer he was not then well known, though we understand he now is. The defendant is an English company engaged in musical publishing: it is the wholly-owned subsidiary of an American company known as January. January has other wholly-owned subsidiaries in (for example) Germany and Scandinavia. A Mr. and Mrs. Schroeder are the sole shareholders in January and the sole directions of January and of all its subsidiaries - known as affiliates.
It was the hope of the plaintiff and Mr. McLeod when they approached Mr. Schroeder that through him they might get into the production side of making gramophone records, though in the event this did not, or at least not directly, happen. What did happen was that the plaintiff signed an agreement with the defendant company in the following terms.
THIS AGREEMENT is made the 12th day of July 1966, between A. SCHROEDER MUSIC PUBLISHING CO. LTD. whose registered office is at 14 Essex Street, and ANTHONY INSTOHE a/k/a TONY MACAULAY. of 8 Lonsdale Square, Islington, London N.1. (hereinafter referred to as "the Composer") of the other part witnesseth that in consideration of one (1) shilling now paid by the Publisher to the Composer (the receipt of which the Composer hereby acknowledges) it is agreed as follows:-
1. Subject as hereinafter mentioned this Agreement shell remain in force for a period of five (5) years from the date hereof (hereinafter called "the said term")
2. (a) The Publisher engages the exclusive service of the Composer and the Composer will render the same to the Publisher during the said term.
(b) The Composer shall obey and comply with all lawful orders and directions in relation to his services hereunder given to him by the Publisher and shall use his best endeavours to promote the interests of the Publisher
(c) The Composer will not during the said term directly or indirectly work for render services or be affiliated to or be interested in or connected with any person firm or corporation engaged in the music publishing business other than the Publisher nor will he during the said term carry on or be concerned in whether alone or in partnership any music publishing business.
(d) The Composer will not divulge to any person except as may be required by the publisher any confidential information relating to the business of the Publisher.
3. (a) The Composer hereby assigns to the Publisher the full copyright for the whole world in each and every original musical composition and/or lyric including but without prejudice to the generality of the foregoing the title words and music thereof written and/or composed created or conceived by the Composer alone or in collaboration with any other person or persons and whether in his own name or under a nom-de-plume at any time during the said term or at any time prior to the date hereof insofar as such latter compositions and/or lyrics are still owned or controlled by the Composer directly or indirectly provided however that if the Composer shall be or become a member of The Performing Right Society (hereinafter referred to as "P. R. S.") and while he remains a member of P. R. S. then the performing rights in such compositions and/or lyrics which are written composed created or conceived by the Composer during the period of such membership are hereby assigned to the Publisher to the full extent permitted by the rules of and subject to the prior rights for any reason ceasing to be vested in P. R. S. the same shall thereupon automatically vest in the Publisher and the Composer his personal representatives or assigns will do such acts and things and execute all such deeds and documents (if any) as may be required for the further and better assurance of such performing rights to the Publisher.
(b) In this Agreement references to musical works and/or lyrics shall include the part of parts thereof (if separate and divisible) written composed created or conceived by the Composer.
(c) In this Agreement reference to "performing rights" means (i) the right of performing the said work in public, (ii) broadcasting the said work, (iii) causing the said work to be transmitted to subscribers to a diffusion service and (iv) authorising other persons to do any of the said acts in relation to the copyright in the said work.
4. Where a musical composition and/or lyric to which this Agreement applies is a "work of joint authorship" as defined by Section 11 of the Copyright Act 1956, the Composer will procure that his co-author or co-authors as the casemay be will join with him in doing such acts and things and executing such deeds and documents as may be necessary to vest the copyright in the said work in the Publisher.
5. In respect of each work hereinbefore referred to the copyright in which has been assigned by the Composer and his collaborators (if any), the publisher will pay to the Composer and his collaborators (if any):
(a) On all piano copies sold and paid for (after the first 500 copies) in the United Kingdom of Great Britain and Northern Ireland and Eire a royalty of 10% of the marked selling price;
(b) 50% of all net royalties received by the Publishers in respect of mechanical reproduction of the said works and of all net synchronisation fees.
(c) In the event of the said works being published in any country outside the United Kingdom and Eire, 50% of the net royalties received by the Publisher from person authorised to publish the said works in such foreign territories.
6. (a) Fees in respect of performing rights shall be divided as to 50% to the Composer and his collaborators (if any) (hereinafter referred to as "the Composer's Share") and 50% to the Publisher.
(b) If the Composer is not a member of P. R. S. and the Publisher receives from P. R. S. all or part of the Composer's share of performing fees the Publisher will pay the same to the Composer and his collaborators (if any)
(c) If the Composer shall be or become a member of P. R. S. and while he remains such member all performing fees shall be divided between the parties hereto accordance with P. R. S. rules for the time being in force subject to the agreement of the parties hereinbefore contained varying the divisions as permitted by such rules so that 50% of such fees are for the Composer and his collaborators (if any) and 50% for the Publisher.
7. For the purpose of Clause 5 hereof all copies which may be distributed to the trade and profession for the purpose of exploiting and popularising the said work and all professional copies and orchestral arrangements and also all reproductions of the words music or any portion thereof in any newspapers, selections, albums, magazines and other periodicals and all mechanical or other medley arrangements shall be free of all royalty or other payment to the Composer.
8. (a) The Publisher shall pay the sum of £50 to the Composer, which shall be a general advance against royalties payable by the Publisher under this Agreement and to be recouped therefrom but in no case shall the Publisher be entitled to the return of any part of such sims. Upon the recoupment by the Publisher of said general advance payment of fifty (£50) pounds, the Publisher agrees to pay another fifty (£50) pounds, which is to be treated as a general advance as described herein. This same procedure shall continue throughout the said term hereof; i. e. as each general advance of fifty (£50) pounds is recouped in full by the Publisher, the Publisher shall pay to the Composer the sum of fifty (£50) pounds, etcetera.
(b) The Publisher will render to the Composer semi annually statements showing the amount of royalties due to the Composer as at 31st December and 30th June in each year. Such statements shall be delivered within 60 days of the relevant date and shall be accompanied by a remittance for such sum (if any) as may be shown to be due to the Composer.
9. (a) If during the said term the total of the Composer's royalties hereunder and all advances thereon (if any) shall equal or exceed £5000 then this Agreement shall automatically be extended for a further period of five (5) years and for the purpose of...
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