A recent case (B4U Network (Europe) Ltd v Performing Right Society Ltd) found that an agreement between two Bollywood film composers and a film production business, for the rights in relation to all of the composers’ present and future musical works for the film to be vested in the film’s producer, was ineffective.
In 2004 the Performing Rights Society (PRS), being a society formed to protect the copyright in musical works, had entered into a written agreement with the two composers of songs for Bollywood films. By this agreement, copyright that the composers “may acquire or own” while remaining members of the society was assigned to it. In 2008 the composers were commissioned by Indian producers Dharma Productions to compose the music and lyrics for the film Kurbaan. Under that agreement, the rights in relation to musical works composed for the film vested in the film’s producer and included all present and future works arising out of the contract and covered all territories of the world.
However, the B4U Network later broadcast a song from Kurbaan on its UK music channel. The PRS then proceeded against the Network for copyright infringement on the basis that copyright had vested in it due to the 2004 agreement with the composers.
The court found that firstly, as both the 2004 and 2008 agreements were assignments for future rights, if the song came within the scope of the future assignment to the PRS under the 2004 agreement, under the rules of priority that assignment, being the first in time, took priority over the assignment under the 2008 agreement with Dharma.
The court further found that any future rights in songs which the composers “may” own came within the scope of the 2004 agreement and was assigned by the composers to PRS as the agreement did no more than refer to rights capable of being owned by them. Therefore, the court deemed that B4U had infringed copyright and the rights to the song were owned by the PRS not the film producer.
At the time the 2004 agreement with PRS was struck, it was beyond argument that the composers’ rights in music they were yet to compose might be owned by them. It did not matter if the composers never actually owned the rights once they created, they only had to have the potential of owning the rights when the 2004 agreement was made.
This case demonstrates that it is possible for businesses and individuals to enter into agreements for the assignment of future copyright as well as existing copyright. However, the assignee should always ensure that the assignor is still the current proprietor and this highlights the needs for appropriate warranties to that effect.
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