Cease and Desist - Victory for Pete Wylie and the The Mighty Wah!
Steve O'Toole prevented a UK Record Company releasing a US artist in the UK under the name Wah! He wrote a cease and desist letter to the Record Company explaining that they were about to infringe Pete Wylies brand name. The next day the Record Company went bust. Coincidence? Or is the pen truly mightier than the sword!
Music Publishing Royalties
Victory over London Law Firm
A Manchester based Music Publishing Company contacted us after desperately searching for a music lawyer based in the North West rather than having to instruct a London based firm. Proceedings had been issued against them by two of their songwriters and the Publishers needed a North West based law firm who were not only well practised in civil proceedings but who had experience of the music business and understood music law. More specifically, the complexities of sampling and the interpolation of sampled material into other recordings and how publishing is distributed thereafter. The Publishers had successfully placed a song composed by the songwriters with an internationally famous US singer on an album released in 2012.
The writers claimed that their publishing contract had expired some years earlier and that they were entitled to 100% of the royalties of the published work and the Publishers were not entitled to anything. The songwriters were represented by a specialist music/media London based firm. Following instructions to our firm the Publishers provided a copy of the original publishing contract. It had been badly drafted by a Manchester based lawyer who did not understand this area of law.
Unfortunately, after reviewing the contract it became clear that the songwriters were correct in their assertion that the agreement had in fact expired a few years earlier. The lawyer who had drafted the publishing contract had crucially omitted the option to renew clause in the agreement. We put forward a defence that it had been the intention of both parties to extend the publishing contract as was evidenced by the content of their subsequent email correspondence up until the song was placed with the US artist.
At no time until after the song was placed did the songwriters object to our client publishing their music. The writers had even stated in emails to third parties that those parties should refer to their Publishers in relation to any publishing matters. Immediately before the final Hearing in the Manchester Chancery Court the Claimants London based lawyers conceded defeat and the case was concluded without the need for an expensive three day hearing. An order was agreed and signed by both parties which effectively entitled the Publishers to recover their 25% share of the royalties of the published work.
An ounce of prevention is worth a TON of cure
Computer Games developer is ordered to pay £750,000 to a business partner he didnt know he had!
How to avoid losing £750,000.00. One of our clients, a computer games development company, instructed us because they wanted to avoid a situation where a friend of theirs, another computer games developer, had been ordered by a Court to pay exactly half of the profits he had made from the sales of a successful computer game to a business Partner he did not know he had. Their friend had developed and sold a game which made £1.5 million profit over a 6 month period. He paid an animator in cash a fee to provide some animation for the project which amounted to approximately 5% of overall animation in the game. The animator issued proceedings against the games developer claiming that he was entitled to a percentage of the profits.
The Court found in the animators favour and ordered the games developer to pay to him half of the £1.5 million profit which amounted to £750,000.00. Our client wanted to know why this had happened to his friend and how he could avoid the same thing happening to him. We advised our client that in the absence of any clear written partnership agreements between people in business the Partnership Act 1890 governs the parties dealings. This means that if you go into business with a view to making a profit and you are not, for example, a Limited Company you are, in fact, a Partnership in law. Furthermore if you do not have a Partnership Agreement which sets out who gets paid for what work they do, then all the Partners are jointly and severally liable for the profits and the losses of the Partnership. In other words all the Partners are entitled to an equal share of the profits (as well as being liable for the losses).
Even if one of the Partners has made a only a relatively small contribution to the development of the partnership project, whatever it is, they will be entitled to an equal share of the profits. In this particular case there were two Partners in law, one contributed less than 5% to the project the other over 95% and yet the Court ordered one Partner to pay to the other Partner exactly half of the £1.5 million profit. He had spent most of it on flash cars and property so he was forced to sell everything in order to pay his business partner £750,000.00!
Either, enter into a Partnership Agreement with any co-contributors to the computer game so that they would only be entitled to a percentage of the profit which reflected their contribution to the project or enter into a Licensing Agreement and licence their work for that particular project in return for an agreed percentage of future sales. This will remove any ambiguity, you will be protected and have peace of mind as you continue with the development and commercial exploitation of the project. Our client chose to enter into Licensing Agreements with any contributors to their project. They are now about to enter into a contract with a major international games company in the knowledge that they will retain the lions share all future profits from the commercial exploitation of their games and not be liable to pay half to a business Partner they did not know they had. Sensible guys.
Filmmakers retain ownership of your Copyright
A Merseyside based Film and Animation Company had been approached by a National Theatre Company to produce an original piece of animation for a new stage production. Nothing had been agreed in writing, however, a one off lump sum fee had been agreed to be paid by the Theatre Company to the Film Company for the creation of the original work.
The Film Company wanted to know where they stood in relation to the ownership of copyright in the work. We advised that in the absence of any written agreement a Court may take the view that a one off lump sum payment constituted an assignment of the copyright from the Film Company to the Theatre Company. That would mean that the ownership of the copyright would transfer to the Theatre Company who would then own the work in perpetuity, and the Film Company would not be entitled to any future remuneration from theproduction of that work. We advised the Film Company that they should retain the ownership of the copyright and to simply licence the work to the Theatre Company.
Once instructed we prepared a draft Copyright Licence Agreement. The Film Company would retain the ownership of the copyright and the fee that the parties had agreed would constitute an advance against future royalties which would be paid to our client from percentage of the receipts from each performance. Our client would therefore receive an income for the life of the production which could then be produced on an international level for years to come. The Theatre Company were happy to enter such an Agreement.
As Media Lawyers we advise creative people who have entered into verbal agreements with third parties and put in place the appropriate agreements which will remove any ambiguity or misunderstanding of what had been agreed between the parties. More often than not ambiguity will lead to confusion and usually Courts proceedings will follow. Court proceedings are prohibitively expensive for any party involved and can bankrupt your business. Verbal agreements or a one page document pulled from the internet usually written in US legal terminology lead to the kind of ambiguity which gives rise to these problems. It follows that creative businesses can potentially save enormous amounts of money in the long run by spending a relatively small amount of money instructing a solicitor well versed in these matters to draft the appropriate agreements.
Remember An OUNCE of prevention is worth a TON of cure.