Beckingham v Hodgens
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN,LADY JUSTICE HALE,LORD JUSTICE JONATHAN PARKER,Lord Justice Jonathan Parker LJ,Lord Justice Laws,Lord Justice Ward |
| Judgment Date | 19 February 2003 |
| Neutral Citation | [2002] EWCA Civ 1901,[2003] EWCA Civ 143 |
| Docket Number | Case No: A3 2002 1457 CHANF,A3/2002/1457 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 2003 |
[2002] EWCA Civ 1901
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(MR CHRISTOPHER FLOYD QC
(Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Schiemann
Lady Justice Hale
Lord Justice Jonathan Parker
A3/2002/1457
MR P ENGELMAN (instructed by Payne Hicks Beach, London WC2A 3QG) appeared on behalf of the {"CLAIM" on behalf of the Applicant}
The Defendant did not attend and was unrepresented
(Approved by the Crown)
Wednesday, 4 December 2002
Before us is an application for permission to appeal on a ground which was refused by Justice Parker LJ when an application was made for permission to appeal to him in writing. On that occasion he gave permission to appeal on one ground; he refused on another ground, but with liberty to renew it to a court hearing the appeal (we are not concerned with those two matters); but in relation to a third ground, he said this:
"I can see no arguable basis for challenging the judge's findings of fact. In particular, I can see no ground for reopening the issue as to when the "video riff" was first heard by the McCluskey brothers."
There is no advantage in present company in setting out the background to this case.
It is suggested that the judge fell into error because he neither accepted the totality of one side's case, nor the totality of the other side's case. As a matter of general principle, judges are not obliged to choose between two stories and come down on one side or the other, and if they do not come down on the plaintiff's side then they must find for the defendant, which, as I understand it, is how the argument was advanced. It certainly does not apply as a matter of general principle, nor in my judgment does it apply on the facts of this case. The judge was desperately trying to find out what happened some 18 years before the hearing in relation to the composition of a tune where nothing was in writing, half the people could not read music and they were doing various things in the recording studios.
Doing the best that he could in finding his way through the fog, the judge came to a conclusion that in relation to some parts of the defendant's case he rejected them as being untrue; some parts of the claimant's case he rejected as being untrue and in relation to other parts he said that the position was not clear.
In my judgment, this court can only interfere with that type of finding if what the judge did was plainly wrong. I am not persuaded that he was plainly wrong. There is a suggestion that further evidence should be adduced in order to explain some evidence which was given by those who wished to give the further evidence now. In principle that is not the type of application which this court generally encourages, because people can say "we really meant to indicate one thing rather more clearly than we have." No doubt that is often true. But there has to be some finality to the fact-finding process. The fact-finding process is extremely difficult, and I accept, subject to error. It is possible the judge got it wrong; but there is no possible way that this court will do any better than he did.
I would refuse permission to appeal.
I agree.
I also agree.
(Application refused; no order for costs).
[2003] EWCA Civ 143
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
CHANCERY DIVISION
(Mr Christopher Floyd QC
Sitting as a Deputy High Court Judge)
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Laws and
Lord Justice Jonathan Parker
Case No: A3 2002 1457 CHANF
Philip Engelman (instructed by Payne Hicks Beach) for the Appellant
Ian Peacock (instructed by Davenport Lyons) for the Respondent
This is an appeal by Mr Robert Hodgens, the first defendant in the action, against an order made by Mr Christopher Floyd QC, sitting as a Deputy High Court Judge in the Chancery Division, on 2 July 2002. By his order, the judge entered judgment for the claimant in the action, Mr Robert Beckingham (professionally known as Bobby Valentino), on the issue of liability for infringement of copyright in the music of a version of the song 'Young at Heart' performed in February 1984 by a group known as the Bluebells and released in about May 1984 (such music being defined in the order as "the Work"). The order also declared that Mr Valentino (as I shall call him) is a joint author of the Work and joint owner (to the extent of 50 per cent) of the copyright in it; that in 1984 he gratuitously licensed Mr Hodgens to exploit the copyright in the Work but that he was entitled to, and did, revoke that licence in March 1993; and that he is entitled to claim damages in respect of, or an account of profits arising from, any infringement of his copyright in the Work on or after 18 October 1993. The judge refused permission to appeal.
There are five other defendants in the action, in addition to Mr Hodgens, but by an order dated 17 January 2000 the action was stayed as against them pending determination of Mr Valentino's claim against Mr Hodgens. By an order dated 13 August 2001 the stay was continued pending judgment on the issue of liability between Mr Valentino and Mr Hodgens, subject to determination by notice.
Mr Hodgens applied to this court for permission to appeal on a number of grounds. Having considered the application on paper, I refused permission to appeal against the judge's findings of fact on the issue as to joint authorship. That refusal was confirmed at a subsequent oral hearing on 4 December 2002 (Schiemann and Hale LJJ and myself). I also refused permission on paper to raise a point of law as to the true construction of section 11(3) of the Copyright Act 1956 relating to joint authorship, but with liberty to renew the application at the hearing of the appeal. That application is renewed before us, on the footing that if permission is granted the substantive appeal on that issue (which I will call 'the section 11(3) issue') will follow. I granted permission on paper to appeal against the judge's conclusion that Mr Valentino was not estopped from revoking the implied gratuitous licence in March 199The appeal on that issue (which I shall call 'the estoppel issue') is now before us.
THE FACTUAL BACKGROUND
The factual background is set out in detail in the judge's careful and lucid judgment. For present purposes, only a brief summary is required.
In 1984 Mr Valentino (who was then aged about 23) was a professional fiddle player. Although he was not a member of the Bluebells (the leader of which was Mr Hodgens), he was hired as a session musician at a recording session held at Red Bus Studios in London in February 1984, at which the re-recording of the Bluebells' version of the song 'Young at Heart' was completed. In the action he claims that at that session he not merely performed but wrote the violin part which features in the introduction to the song, consisting of four bars (repeated three times during the song), without any significant input from anyone else; and that his contribution in writing the violin part was such as to render him a joint author of the music ('the Work') and hence a joint owner of the copyright in it. That claim is denied by Mr Hodgens, who claims to have written all the music (including the violin part) himself. Mr Hodgens alleges that at the recording session Mr Valentino merely followed instructions in relation to the violin part given by him. In the result, as already noted, the judge found in favour of Mr Valentino on this issue and upheld his copyright claim. Subject only to permission being granted to appeal on the section 11(3) issue, therefore, there is now no possibility of appeal against that part of the judge's order whereby it is declared that Mr Valentino is a joint author and hence a joint copyright owner of 'the Work'. Nor is there any separate appeal against the quantification of his interest in the copyright at 50 per cent.
The background facts in relation to the estoppel issue are as follows. Following its release in mid-1984 the Bluebells' version of the song (incorporating the disputed violin part), achieved a degree of commercial success, reaching number 8 in the charts. At that time, Mr Valentino made no claim to be a joint author of the music. Indeed, his own evidence was that he told Mr Hodgens in around 1984 that he had taken advice as to whether he should make such a claim but had decided not to do so (transcript bundle, tab 1, page 60D).
In 1986 the Bluebells disbanded.
In 1993 the Bluebells' version of the song was (adventitiously so far as the parties were concerned) used as backing in a Volkswagen commercial. This caused a substantial resurgence in its popularity, as a result of which it reappeared in the charts and was at no. 1 for a number of weeks. Its success was such that the group re-formed for the purpose of performing it on a number of occasions on the television programme 'Top of the Pops'.
Following this resurgence of popularity, Mr Valentino, for the first time, claimed a share of future royalties on the basis that he was a...
To continue reading
Request your trial
- Fisher v Brooker
-
Fisher v Brooker
...by this court, for example, by Walker LJ in Gillett v. Holt [2001] Ch 210 at 232D-E and by Jonathan Parker LJ in Beckingham v. Hodgens [2003] EMLR 18 at paragraph 36. Indeed, there was no serious disagreement between leading counsel about the relevant principles. It is true that proprietary......
-
Julia Kogan v Nicholas Martin
...concept, it is helpful for the purposes of analysis to consider each element in turn. 32 The first element is collaboration. In Beckingham v Hodgens [2003] EWCA Civ 143, this court approved the statement of Keating J (with whom Byles and Montague Smith JJ agreed) in Levy v Rutley (1871) L.......
-
Matthew Fisher v Gary Brooker and Another
...author of the song." 46 In view of the cases that have come before the courts (for example Beckingham v Hodgens [2002] EWHC 2143 (Ch); [2002] EMLR 45 and on appeal at [2003] EWCA Civ 143; [2003] EMLR 18), the practice to which Mr Oxendale refers is plainly not universally shared. But whethe......
-
Curing the authorless void: protecting computer-generated works following IceTV and Phone Directories.
...275, which defines 'cooperate' as 'to work or act together or jointly; unite in producing an effect'. (130) See, eg, Beckingham v Hodgens [2004] ECDR 6, 59-60 [49]-[52] (Parker LJ); Levy v Rutley [1871] LR 6 CP 523, 529 (Keating J), 530 (Montague Smith J). See also Najma Heptulla v Orient L......
-
‘My tongue is mine ain’: Copyright, the Spoken Word and Privacy
...(2).113 ibid, s 9(1).114 ibid,s10(1).115 Cala Homes(South) vAlfred McAlpine Homes East [19 95] FSR 818 at 835. Cf Beckingham vHodgens[2003] EMLR18 (CA), holding that the existence of a common intention to produce a joint workwas not a requirementfor a work of joint authorship.116 Donoghue v......