21-11-05

Conflicting Terms Resolved in Favour of 'Essential' Term: Mark Taylor v Rive Droite Music Limited A music publisher, RDM, has (mostly) lost its appeal in a dispute with a songwriter, Mr Taylor, which involved fundamental issues of contract and copyright law. In Mark Taylor v Rive Droite Music Limited (published 4 November 2005), Mr Taylor had made 5 separate claims, including that his publishing contract had a 2-year term despite setting out provisions for 3 years' advances, and that certain unfinished works were not "Compositions" and therefore not subject to the agreement. After a string of hits, Mr Taylor signed a third successive publishing contract with RDM in 1998 which contained a clause stating that the agreement was for a Term of two years (subject, as usual, to the 'Minimum Commitment' of 10 Compositions per year). The advance payments clause, however, clearly set out advances payable to the composer for each of three 12-month periods and RDM therefore assumed that it could trigger a third year by making that third payment. The trial judge ruled in favour of a 2-year Term and RDM appealed. The Court of Appeal was divided in their reasoning and findings but the majority held that, because the clause setting out the Term was "fundamental and essential … conceptually, legally and commercially", it must prevail over the advance clause which, despite being commercially important, was less fundamental. The Court noted that this was "one of those rare cases in which … there had been some defect of draftsmanship" and conceded that the clauses "could not be sensibly read together". On balance, the advance clause was seen as flying "more flagrantly in the face of the expressed intention" of the parties. On the copyright point, Mr Taylor had during the Term of the contract taken part in some writing sessions with the artist Enrique Iglesias but the demos were unfinished and were not completed by the composer until after the contract had expired. The composer argued that the unfinished works were not "Compositions". The issue for the court was, because the agreement covered only Compositions written "in whole or in part", to determine whether the early unfinished work constituted a "fixed" Composition. The court recognised the "inherent uncertainty" in this assessment but nevertheless held that the unfinished works could not be "Compositions" because only a writer can decide when a work of his comes into existence and the court did not want to give Publishers such control over the writing process. Furthermore it was noted that, if such unfinished works were "Compositions" then writers might be able to more easily satisfy their Minimum Commitment by delivering an "unfinished" work (as a Composition) and then re-delivering the same-but-developed work as a second Composition. This case should remind publishers to ensure contracts clearly cover those works started during the term but finished thereafter, whilst writers should know that they have considerable discretion to decide when a work is "finished". We are all reminded, however, that it helps to read the contract carefully before signature. The full text of the judgment may be accessed via: http://www.lawtel.com/~5e91557d55f748dab23e182d4149793d~/content/display.asp?ID=AC0104860ChD.pdf
Article by Tom Frederikse