Prior v Sheldon

Case [2000] FCA 438

FEDERAL COURT OF AUSTRALIA
Prior v Sheldon [2000] FCA 438

COPYRIGHT – Authorship of musical works – Musical theme for television series and “stings” for exits and entrances to program – Conflict of evidence as to authorship of both works – Effect of agreement to submit dispute as to authorship to determination by independent expert selected by APRA – Damages – Loss of royalty payments and interest on royalties – Loss of mention on television series credits - Aggravating factors:  flagrancy and benefit to respondent.

Copyright Act 1968, ss10, 32, 35, 36. 78 and 115(4)

JOHN PRIOR v ZELDA SHELDON, STUART SHELDON and ARTEC SOUND VISION PRODUCTIONS PTY LIMITED

ARTEC SOUND VISION PRODUCTIONS PTY LIMITED (Cross Claimant)
JOHN PRIOR (Cross Respondent)

NG 687 of 1998

WILCOX J
SYDNEY
7 APRIL 2000


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

NG687 of 1998

BETWEEN:

JOHN PRIOR
Applicant

AND:

ZELDA SHELDON
First Respondent

STUART SHELDON
Second Respondent

And

ARTEC SOUND VISION PRODUCTIONS PTY LIMITED
Third Respondent

ARTEC SOUND VISION PRODUCTIONS PTY LIMITED
Cross claimant

And

JOHN PRIOR
Cross respondent

JUDGE:

WILCOX J

DATE OF ORDER:

7 APRIL 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.It be declared that:

(a)the applicant, John Prior, and the first respondent, Zelda Sheldon, are the joint authors of the musical work known as the theme for the television series “The Great Outdoors”, composed in 1992;

(b)copyright subsists in that work, in an adaptation of that work made in 1994 and in adaptations of the themes for background music of the series;

(c)the applicant and the third respondent, Artec Sound Vision Productions Pty Ltd, as assignee of the first respondent, are joint owners of the said copyrights.

2.Judgment be entered in favour of the applicant, John Prior, against:

(a)the first respondent, Zelda Sheldon, in the sum of seventy six thousand seven hundred and fourteen dollars and twenty six cents ($76,714.26);

(b)the second respondent, Stuart Sheldon, in the sum of one thousand three hundred and forty two dollars and forty two cents ($1,342.42).

3.The cross-claim be dismissed.

4.The first and second respondents, Zelda Sheldon and Stuart Sheldon, pay the costs incurred by the applicant in connection with the principal proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

NG687 of 1998

BETWEEN:

JOHN PRIOR
Applicant

AND:

ZELDA SHELDON
First Respondent

STUART SHELDON
Second Respondent

And

ARTEC SOUND VISION PRODUCTIONS PTY LIMITED
Third Respondent

ARTEC SOUND VISION PRODUCTIONS PTY LIMITED
Cross claimant

And

JOHN PRIOR
Cross respondent

JUDGE:

WILCOX J

DATE:

7 APRIL 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. WILCOX J:  At issue in this case is the authorship of two original musical works, both associated with a television series called “The Great Outdoors”.

  2. The first work is the original theme music for the series.  The case of the applicant, John Prior, is that this was a work of joint authorship by himself and Zelda Sheldon, the first…

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AGLC
Prior v Sheldon [2000] FCA 438
Case
[2000] FCA 438
Decision Date

CaseChat Overview and Summary

The case of Prior v Sheldon involved a dispute over the authorship and copyright of a television theme song and associated musical stings. The plaintiff, John Prior, claimed co-authorship of the theme and stings for the television series "The Great Outdoors," asserting that he contributed significantly to their creation. The defendants, Zelda and Stuart Sheldon, who were partners in Artec Sound Vision Productions, denied Prior's claims and argued that they were the sole authors of the music. The case was heard in the Federal Court of Australia.

The central legal issues revolved around the determination of authorship and the extent of Prior's contribution to the creation of the theme and stings. The court had to examine the evidence presented by both parties to ascertain whether Prior's involvement warranted recognition as a co-author. Additionally, the court had to determine the appropriate quantum of damages to be awarded to Prior for the infringement of his copyright and for loss of royalties due to the failure to recognise his authorship.

In its reasoning, the court noted the conflicting evidence from both Prior and the Sheldons regarding the composition process. However, the court found that the evidence indicated Prior made significant contributions to the theme and stings, particularly in the development of the musical arrangement and performance. The court emphasised that the test for authorship is not based on the length of time spent on the work but on the quality and nature of the contribution. The court concluded that Prior was a joint author of the works and awarded him damages for the loss of royalties and credits. The court also took into account the aggravating factors of the Sheldons' actions, including their flagrant disregard for Prior's rights and the personal benefit they derived from the infringement.

The final orders of the court declared that John Prior and Zelda Sheldon were joint authors of the musical works in question, and that copyright subsisted in those works. Judgment was entered in favour of Prior against the Sheldons for the sum of $76,714.26 plus interest and costs. The cross-claim by the Sheldons was dismissed.

Orders

Orders of the court

1. It be declared that:

(a) the applicant, John Prior, and the first respondent, Zelda Sheldon, are the joint authors of the musical work known as the theme for the television series “The Great Outdoors”, composed in 1992;

(b) copyright subsists in that work, in an adaptation of that work made in 1994 and in adaptations of the themes for background music of the series;

(c) the applicant and the third respondent, Artec Sound Vision Productions Pty Ltd, as assignee of the first respondent, are joint owners of the said copyrights.

2. Judgment be entered in favour of the applicant, John Prior, against:

(a) the first respondent, Zelda Sheldon, in the sum of seventy six thousand seven hundred and fourteen dollars and twenty six cents ($76,714.26);

(b) the second respondent, Stuart Sheldon, in the sum of one thousand three hundred and forty two dollars and forty two cents ($1,342.42).

3. The cross-claim be dismissed.

4. The first and second respondents, Zelda Sheldon and Stuart Sheldon, pay the costs incurred by the applicant in connection with the principal proceeding.

Background

Background to the litigation

The amended Statement of Claim pleads three causes of action against Artec Pty Ltd, as third respondent: breach of copyright, passing off and breach of s52 of the Trade Practices Act 1974. These breaches cover both the original theme music and the stings.The facts(i)Background There is a sharp conflict in aspects of the evidence of Mr Prior and Ms Sheldon, in relation to the composition of the original theme of “The Great Outdoors”, and between Mr Prior and Mr Sheldon, concerning aspects of the evidence regarding the stings. However, much of the evidence is uncontroversial. I will detail the uncontroversial evidence, and the parties’ positions on controversial matters, before making findings on the controversial matters. In 1992 Ms and Mr Sheldon were carrying on business in partnership, under the business name “Artec Sound Vision Productions” (“Artec”). The business of the partnership, like that of the company (the third respondent) which was formed in April 1994 to succeed the partnership, was sound production for bands and the creation of marketing songs and jingles for corporate clients and advertising agencies. Ms Sheldon had been composing songs since 1980. In her affidavit she said:“My role in Artec was to write the jingles. My songs have always been written very simply, three to six chords and mostly written in C, G or D. Stuart assists me by playing a guitar to compliment [sic] a melody and chord structure which I had composed. For example, sometimes he would play the guitar to compliment [sic] a chord structure or progression which I had developed.” Mr Sheldon described himself in his affidavit as “an audio and musical director and head engineer” of Artec Pty Ltd. He said he and Ms Sheldon were “originally both musicians”. They started the partnership, on a part-time basis, in 1984 “to try and sell jingles, advertising music and record bands”. He described his role at Artec Pty Ltd in this way:“Essentially my role at Artec is as a musical director. When Artec is given a project I manage Zelda and any other composer working on the project. I also listen to their compositions and assess whether they satisfied the project description. I give some direction on occasion but otherwise try not to have too much input. My primary role is to ensure that our client gets what they need when they need it.I also occasionally write musical works and sometimes record and mix programs.” In about 1991 or early 1992, Ms and Mr Sheldon met John Maybe of Travel Entertainment Pty Limited, later called Sorena Productions Pty Limited (“Sorena”). At Mr Maybe’s request, Artec supplied Sorena with music for a four part documentary series to be called “Track Record”.(ii)Composition of the theme In early July 1992 Sorena contacted Artec in respect of music for a 13 part television series to be called “The Great Outdoors”. Sorena’s initial request was for theme music to be used in conjunction with a pilot program. This was required by the end of July. At that time, Artec employed a music composer and programmer named Mario Grigorov. Mr Grigorov and Ms Sheldon each composed some possible themes. Artec submitted two of them to Sorena but both were rejected. Ms and Mr Sheldon had a conversation with a friend involved in television. According to Mr Sheldon, the friend said they needed “to make it more commercial like 2 Day FM”. Ms Sheldon’s version of the friend’s advice was “to be more rock, like Midnight Oil”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

WILCOX J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: WILCOX J

The critical issue in relation to the stings is not the length of time Mr Sheldon was present, but whether he made a creative contribution in the music. I will return to that issue.(v)APRA registration The Australasian Performing Right Association (“APRA”) acts as the agent of composers to collect royalties due to them arising out of the public performance of their work, including on television. It can carry out this task only if it has particulars of works likely to earn royalties, with accurate information as to the identity of the person or persons entitled to receive those royalties. Registration of a work with APRA is therefore a matter of importance to a composer, especially a composer of a work, like the theme for a television series, that is likely to be played publicly on numerous occasions. Mr Prior gave evidence that, at the meeting of 21 November 1992, he produced an APRA registration card for the theme of “The Great Outdoors” and asked Ms Sheldon to sign it. The card distributed entitlement to royalty payments equally between Ms Sheldon and Mr Prior. Ms Sheldon failed to sign the card and Mr Prior subsequently decided to proceed unilaterally. On 15 February 1993 he submitted to APRA a registration card, signed only by himself, in which he attributed 50% of the royalty rights to Sorena (on the basis it was the owner of the lyric heard with the musical theme) and 25% to each of Ms Sheldon and himself. On the same day he submitted a further registration card covering the 14 stings, in which he claimed 100% of the royalty rights. Under cross-examination, Mr Prior said it was a “mistake” for him not to have shown these cards to the Sheldons at that time, but he said his relationship with them was then very poor and he had thought it would be a waste of time to do so. On 8 March 1993 APRA notified Mr Prior that it had omitted Sorena from the interests registered in respect of the theme (apparently on the basis that the “lyric” consisted only of the vocalised title of the work) and was crediting interests of 50% to each of Ms Sheldon and himself. The letter went on:“Under normal circumstances APRA would return the card to you to obtain the co-writer’s signature or contact the co-writer, direct to ascertain whether she agrees with the percentages allocated. You have requested this not be done as you are taking legal action and contact with Zelda Sheldon could jeopardise an already precarious situation further for you.We will note our files and await your advice if and when the situation sorts itself out or when Zelda Sheldon registers the work.”(vi)The APRA dispute On 14 April 1993 Ms Sheldon lodged with APRA an application in respect of “The Great Outdoors” theme in which she claimed a 100% interest. APRA informed Mr Prior of the application in a letter dated 13 July. At about that same time, APRA sent out to members its half-yearly royalty statements and cheques. On perusing her royalty statement, Ms Sheldon realised she had been paid only 50% of the royalties due in respect of “The Great Outdoors” theme. She contacted APRA and was told of Mr Prior’s competing claim.