THE TERM OF COPYRIGHT APPLIED TO DURAN DURAN'S CASE. PART II: THE COURT'S DECISION.

This post will continue to discuss the legal case in which British band Duran Duran has recently been involved, concerning their intent at recovering rights over their compositions in the period from 1980 to 1983. After setting the base for the case, now comes the time to comment of the Court's decision.

The case has been decided by Judge Arnold in favour of the publisher (the Claimant) and against the band members (the Defendants) (1). His reasoning can be summarized as follows:

1. The applicable law is English law.

2. The Defendants rely upon the applicability of Section 203 of the US Copyright Act.

3. The Defendants failed to introduce evidence as to US law.

Judge Arnold’s approach is consistent with the nature of legal procedures in UK. The presentation of evidence is left up to the parties, while the judge is bound to remain a passive observer and arbiter throughout the process. Therefore, if any of the parties acknowledged that foreign law were applicable, that law would have to be either proved or admitted by all parties. In this case, the defendants failed to present proof of Section 203 of the US Copyright Act before the court.

It’s interesting to note that, however, the Court's ruling does include several statements about the Section 203 of the US Copyright Act in their decision, comprising the following ones:

“It is also common ground that:... ii) an assignment of US copyright for the full term of copyright will be effective throughout that term unless and until the author serves notice of termination in accordance with section 203(a)(4); iii)the Notices served by the Defendants are valid and effective as a matter of US law, and have the consequence that ownership of the US copyrights in the Compositions has reverted, or will revert, to the relevant Group Members as from the dates on which the Notices take effect.”

“There is no dispute that, as obvious, the purpose of section 203 is to protect authors from the consequences of transactions which involve assignments of copyrights for the full term of those copyrights.”

“... the Claimant says that the Group Members assigned their US copyrights to the Claimant for the full term of those copyrights, and that, in the absence of any express reservation by the Group Members of the right of termination under section 203, the exercise of that right was precluded...”(1).

Judge Arnold does admit that should a clause regarding Section 203 of the US Copyright had been included in the publishing contracts, Duran Duran would have spared being accused of breaching the agreement. After all, Section 203 was already applicable at the time the contracts were signed.

Judge Arnold adds:

“24. Counsel for the Defendants suggested that a term of a contract governed by English law and subject to the exclusive jurisdiction of the English courts that expressly prohibited an author from exercising his right of termination under section 203 of the US Copyright Act would be unenforceable as a matter of English public policy. In my judgment it is not open to the Defendants to rely upon this suggestion. It was not advanced in Mr Howard's witness statement. Nor was it advanced in counsel's skeleton argument...”

“25. Even if the point is open to the Defendants, I am not persuaded that it is correct as a matter of law. Counsel for the Defendants admitted that he was unable to cite any authority in support of the proposition. Nor did he advance any cogent argument of principle in support of it, other than a vague reliance upon comity. The general rule, however, is that English courts will enforce a contract which is valid and enforceable under English law even if the contract would be unenforceable as contrary to public policy in another country with which the contract has a connection... It is true that English courts will not enforce a contract the performance of which would be unlawful in its place of performance ..., but counsel for the Defendants did not invoke that principle here.”(1)

However, it can be stated that when signing the agreements, US copyrights were transmited in accordance to US law, since that´s the law that confers those rights in its territory. It´s not only common sense, it´s also in the language of the agreements: “...throughout the world and the right to renew and extend such copyrights and other rights and the ownership of such renewed and extended copyrights and other rights as may now or hereafter be conferred by the laws of any territory...”(1)

The Decision has this to say: “There is no dispute that ... the applicable law is English law”.

(1) Gloucester Place Music Ltd v Le Bon & Ors [2016] 3091 (Ch) (England and Wales High Court).