Hodgens v Beckingham

Section 11(3) of the Copyright Act 1956 does not require contributors to intend to become joint authors. It requires collaboration in producing the work and contributions which are not separate. Collaboration entails joint labour in pursuit of a common design to produce the work, not an intention as to legal authorship.

An implied gratuitous copyright licence is revocable on reasonable notice unless supported by consideration. A proprietary estoppel requires detrimental reliance. Without detriment, sufficient unconscionability cannot arise. Earlier acquiescence in exploitation did not prevent a joint author from revoking the licence as to an unforeseen, later royalty stream after making the claim known.

The claimant, a session fiddle player, asserted that he created the distinctive violin part in the Bluebells’ recording of Young at Heart. The Deputy Judge held that he was a joint author and 50 per cent copyright owner, and that he had revoked a gratuitous implied licence to exploit the work in March 1993.

The defendant appealed the rejection of an estoppel defence. He also renewed an application for permission to appeal on the construction of section 11(3) of the Copyright Act 1956, contending that joint authorship required a common intention to be joint authors. The central issues were whether the licence had been effectively revoked and whether the claimant was estopped from claiming post-1993 royalties.

1. Appeal dismissed unanimously. Jonathan Parker LJ gave the reasons, with which Laws and Ward LJJ agreed. The court upheld the Deputy Judge’s conclusion that the claimant’s statements in March 1993 clearly revoked the implied gratuitous licence. There was no proper basis for challenging the relevant findings of fact.
2. Estoppel failed. Applying Taylor’s Fashions Ltd v Liverpool Victoria Trustees [1982] 1 QB 133 and Gillett v Holt [2001] Ch 210, a party raising estoppel must show detrimental reliance. Detriment is indispensable because, in this context, unconscionability is its product. The defendant had not established detriment which made it unconscionable for the claimant to claim a share of royalties generated by the unforeseeable 1993 revival.
3. The claimant sought no pre-1993 royalties. His earlier statements merely confirmed an implied licence revocable on reasonable notice; without consideration, they could not create an irrevocable licence. The alleged delay after the 1993 claim, possible reputational harm, the short opportunity to remove the violin part, and expenditure of earlier royalties did not establish an estoppel. The new complaint concerning third-party contractual liabilities had not been raised or investigated below and was barred from being advanced for the first time on appeal.
4. Renewed permission application refused. Section 11(3) of the Copyright Act 1956 contains no additional requirement that collaborators intend joint authorship. The statutory requirements are collaboration and contributions which are not separate. Following Levy v Rutley (1871) LR 6 CP 523, collaboration requires joint labour in furtherance of a common design to produce the work. That common design concerns the creation of the work, not an intention to share legal authorship. The Canadian policy-based approach requiring an intention to co-author was not warranted by the statutory language.

• Court of Appeal (Civil Division): In [2003] EWCA Civ 143, the court dismissed the defendant’s appeal on estoppel and refused his renewed application for permission to appeal on section 11(3).
• High Court, Chancery Division: On 2 July 2002, Mr Christopher Floyd QC, sitting as a Deputy High Court Judge, held that the claimant was a joint author and 50 per cent owner of the copyright, and that the gratuitous licence had been revoked in March 1993.