Wednesday 27 May 2015

The Fall and Rise of Touch Sensitive

Last week saw the handing down of yet another case from the Intellectual Property Enterprise Court, presided over by Miss Recorder Michaels sitting as a Deputy Enterprise Judge, which reminds us that as long as there is a music business, there will be disputes over song writing credits to keep the courts and lawyers in work. The second thing we learn, or perhaps have confirmed for us, is that you can't always trust the credits which appear on the liner notes of albums. 

The case is called Minder Music Ltd and Julia Adamson v Steven Sharples, and involves a song entitled Touch Sensitive by the post punk band The Fall. The first claimant, Minder Music, is a music publisher to which publishing rights in the song were assigned by the band's lead singer and founding member Mark E Smith. The second claimant is Julia Adamson (formerly known as Julia Nagle), one time member of The Fall and for the purposes of this case, the co-writer with Mark Smith of the original version of the song Touch Sensitive. Smith wrote the lyrics and owned a one third share, and Adamson who wrote the music, a two-thirds share, in the publishing and performing rights in the original song which was first performed live on the John Peel Show in March 1998. That much was not in dispute.

In December 1998 the band agreed to release an album through Artful Records. This album was eventually to be entitled The Marshall Suite, but the early recording sessions did not go well and so the defendant, Mr Sharples, was brought in to produce the album. The exact circumstances of how and under what terms Mr Sharples was brought in were one of the issues the court had decide upon. This part of the dispute centred on an alleged verbal agreement between Mr Sharples and a Mr McMahon who was then working for the band as their PR agent and also had connections with Artful Records. This agreement was referred to as the Canalot Agreement as it was said to have taken place at Canalot Studios in Kensal Green, West London in mid January 1999. Mr Sharples's version of events was that Mr McMahon held himself out to be the band's manager and offered Mr Sharples not only the job of producing the album, but also of re-writing the original song, for which he would receive a one third interest in the copyright. It was not disputed that Mr Sharples's work as producer did result in a new version of the song being created and this was referred to as the 'Album version'. What the court had to decide was whether the contribution of Mr Sharples to both the music and lyrics of the Album version was significant enough to entitle him to a share in the copyright of each part. But before getting to that issue, the court had one other matter to resolve. 

Following the recording of the album Mr Sharples was credited on the sleeve notes along with Mr Smith and Ms Adamson, as the writer of the Album version. This appeared to have been arranged by Artful Records, and Mr Smith and Ms Adamson denied being consulted about this. However in the event, little turned on this detail. Mr Sharples was also credited as the producer, as well as the author or joint author of some of the other tracks on the album, but these latter credits were not  in dispute in the present case. The album was released later in 1999 and it was reviewed favourably by The Guardian

At about the same time, Mr Sharples wrote to the Performing Rights Society (PRS) to register his interest in the Album version, but it appears this claim was misplaced and no action appears to have been taken by PRS. It was not until some five or six years later that Mr Sharples decided to chase up his claim, and this led to the PRS putting the matter into dispute and holding back payment of any more royalties, pending resolution. 

By this point Mr Smith had assigned his 33% share of the publishing rights to Minder Music, and so they became involved in the dispute over the unpaid royalties. Minder Music's co-owner John Fogarty strongly resisted Mr Sharples's claim, as did Ms Adamson. Matters dragged on for some time until August 2013 when Ms Adamson and Mr Sharples signed a settlement agreement in which Ms Adamson transferred half of her two-thirds interest in the song to Mr Sharples, meaning that Minder Music, Ms Adamson and Mr Sharples would each have a 33% interest in the accrued royalties. However Minder Music, who were not party to the Settlement Agreement, objected on grounds which were not specified, and so PRS did not release the royalties. Minder Music sought to bring matters to a head and issued proceedings against Mr Sharples, seeking declaratory relief that the copyright was shared 33% by Minder Music and 66% by Ms Adamson, and that Mr Sharples owned no part of the copyright. They also sought a inquiry as to damages.

Mr Sharples denied the claim, and relied on the Canalot Agreement, the Settlement Agreement and his claim of joint authorship of the Album version in support of his defence.

The court thus had decide 4 main issues:
  • Was the Canalot Agreement valid?
  • Was the Settlement Agreement unconscionable?
  • Did Mr Sharples's contribution to the music and lyrics of the Album version amount to a significant contribution according to the test set by Deputy Judge Williamson QC in Bamgboye v Reed?
  • If the answer to question 3 is yes, what is the amount of his share in the royalties?

The Canalot Agreement

The court found that this agreement was void because Mr McMahon was not authorised either in fact or impliedly, to act as agent for the band collectively or for Mr Smith and Ms Adamson as individuals.

The Settlement Agreement

Ms Adamson had alleged in her claim that she was pressured into signing the agreement by mr Sharples who took advantage of her straitened financial situation at the time, and that thus the bargain was unconscionable. The court declined to set aside the agreement because the evidence before it showed no undue pressure and indeed in part showed that Ms Adamson actively sought the agreement as a way of resolving her financial problems, through the hoped-for release of the accrued royalties.

The Lyrics

The court undertook an analysis of the differences in the lyrics as between the Original version and the Album version and found that these changes were insignificant, and even if this was wrong, such changes as were made were more than likely to be attributable to Mr Smith, not Mr Sharples.

The Music

Once again the court looked at the differences between the Original version and the Album version and found that, here,  there were some minor but significant changes especially in the composition and arrangement of a new string section and these were attributable to Mr Sharples. However his contribution was small, and in the court's view only entitled him to a 20% of the copyright in the music. Since Mr Sharples had not sought any other relief by way of counterclaim, no order was made as to damages, although this was left open by the judge.


As at January 2012 PRS was holding some £12,000 in accrued royalties (for both lyrics and music), and one might imagine this figure could have increased by around 50% or more since then, given that Wikipedia asserts that "Touch Sensitive was used in the UK as a soundtrack to an advert for the Vauxhall Corsa"* although no date is given for when that happened. And so a 20% share in the music royalties possibly represents around £2,000 to date. I rather suspect that the defendant's legal costs will eat up most of that. 

You can listen to a version the song here. I have no idea which version this is, but I presume it is the Album version as found on the Marshall Suite album, which sadly is no longer available.   See comment below.

* Update. You can view the Vauxhall Corsa advert here. I understand the advert came out in 2002 and so the licence fee paid by Vauxhall is probably not reflected in the figure of £12,000 noted above as that only represents the period 2005-2012, while PRS were holding the royalties in a suspense account.

1 comment:

Spartan HB said...

The Marshall Suite IS still available and now comes in a comprehensive triple CD re-issue (with 4 versions of Touch Sensitive: peel session, album,single (dance mix), and a live radio version. From Amazon: