Mrs. May is right - sometimes a bad deal really is worse than no deal
|Rt. Hon Theresa May MP|
Open Government Licence v.3.-
It is hard not to feel a little bit sorry for Mr Ray Dorset, the lead singer of Mungo Jerry, whose case I discussed yesterday in Music and Entertainment Law: Music Contracts - Editions Musicales Alpha S.A.R.L. v Universal Music Publishing Ltd and Others 28 June 2017 NIPC Law. Mr Dorset wrote the words of the hit song Alright, Alright, Alright from which he might reasonably have expected a shed load of money as it reached number 3 in the charts. Instead, he has been ordered to pay £33,600 plus costs to a company run by a former business associate of his former manager. It could have been even worse for Mr Dorset as a claim by that company against him for breach of contract might well have succeeded.
So how did he find himself in that position? Well, his first problem was that he tried to record a song without first getting the permission of the company that owned the copyright in the music to do so. It should have been easy enough to obtain that permission. The tune had already been a big hit in France in 1966 with the release of Et moi, et moi, et moi by Jacques Dutronc. Mungo Jerry was very big in the UK after the success of In the Summertime. The copyright owner could have been expected a lot more money from the recording of an English language version by Mungo Jerry had it given permission. Why wouldn't it consent?
Shouldn't Mr Dorset have known better than to try to record a song without the copyright owner's permission? Perhaps. But how would he have known about copyright? He was still in his 20s. He had left school without any qualifications. He would have left that sort of thing to his agent Barry Murray. Mr Murray could easily have been alerted to the problem had he consulted a lawyer specializing in copyright of whom there were quite a few in the 1970s as IP was just becoming fashionable. But it does not appear that he did so.
If that was the case, Mr Murray's failure to take specialist legal advice led to Mr Dorset's second problem. By recording the song without the copyright owner's licence, Mr Murray infringed the copyright in the music. When the owner of that copyright complained of the infringement in 1973, Mr Murray went to Paris to meet the owner of the music copyright to try to settle the complaint. As part of the settlement, Mr Murray agreed to assign Mr Dorset's copyright in the lyrics to the complainant. As a result, Mr Murray was not recognized as the author of Alright, alright, alright for many years. Part of the credit went to the author of Et moi, et moi, et moi who took no part in the songwriting. Part went to someone called "Joe Strange" which appears to have been Mr Dorset's alias. Not only did Mr Dorset miss out on the recognition that he deserved, he probably did not get all the money to which he would have been entitled either.
Why did Mr Murray agree to that? One explanation is that he discovered that his negotiating position was weak. If he failed to settle the copyright owner's claim, an interlocutory injunction might have been granted which would have scuppered the whole record release. On the other hand, no judge could have ordered Mr Dorset to assign his copyright in the lyrics or to acknowledge the author of the French song as his co-author.
So you can see why Mrs May says that no deal is sometimes better than a bad deal. Whenever you negotiate, always bear in mind your BATNA (best alternative to a negotiated agreement) and your WATNA (worse alternative to a negotiated agreement). Negotiation in the early 1970s wasn't so sophisticated as it is today. The terms BATNA and WATNA had not yet been invented but any lawyer could have advised Mr Murray of Mr Dorset's rights and options. It is also possible that a lawyer acting for Mr Dorset could have made a much better settlement than the one that Mr Murray made.
By the early 1990s, Mr Dorset came to the conclusion that he had not earned anything like as much money as he should have done and decided to do something about it. That led to his next bad decision. He and his former music publisher persuaded the PRS and other collecting societies around the world to register him as the author of the whole song instead of the French company to which he had assigned his copyright in 1973. That same company also owned the copyright in the music and the lyrics to Et moi, et moi, et moi. Mr Dorset and a company run by his former publisher then granted licences to others who, in turn, licensed his song for the film West is West and all sorts of other films and commercials. By so doing, Mr Dorset breached the 1973 settlement and infringed the French company's copyrights.
Could that problem have been avoided? Quite possibly. Had he consulted lawyers they would have warned him against taking any step that might infringe copyright. They might also have tried to renegotiate the 1973 settlement. They may not have succeeded but they are unlikely to have made the situation any worse. If Mr Dorset was owed money under that settlement they might have recovered some of it for him.
It took a long time for the French company to cotton on as to what had happened but, when it did, it sued Mr Dorset, his former music publisher's company and everybody to whom they had granted licences. This time Mr Dorset did take legal advice and his solicitors seem to have responded sensibly when challenged. They pointed out quite truthfully that he and he alone had written the words of Alright, Alright, Alright and that nobody had objected to his registration with the collecting societies for over 20 years. However, the French company pointed to the 1973 assignment by Mr Murray to which Mr Dorset had no answer. Probably wisely, he settled shortly before the trial.
I have no idea of the damages or costs that Mr Dorset paid the French company but the BATNA can't have been at all inviting and the WATNA was obvious. A trial that was likely to result in a perpetual injunction, an inquiry as to damages (including additional damages under s.97 of the Copyright, Designs and Patents Act 1988), costs and, possibly. claims for indemnities or contributions and costs from all the licensees. It could have been very messy and very expensive for him indeed.
The term BATNA was coined at Harvard Law School whose Project on Negotiation has created a whole new discipline on the subject and which was popularized by Fisher and Ury's Getting to Yes: Negotiating an agreement without giving 1981. For a good introduction to BATNA/WATNA theory, see Jessica Notini Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified Jan 2005 mediate.com.
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