Published: Wed, 07 Mar 2018
Hadley v Kemp  EMLR 589
Oral agreement and contractual requirements – Joint authorship of musical work.
There were five members of a well-known pop group. The song composer, guitarist/keyboard player and singer, Mr. Kemp, also owned the songs’ publishing company. Mr. Kemp wrote and composed the songs; the band members ‘contributed’ to the songs during rehearsals. Three members sued Mr. Kemp and his publishing company for payments of shares of his ‘publishing income’ of the songs. Their primary argument was that there was an oral agreement that rendered him contractually bound to distribute the publishing income. Their alternative argument was that they were joint authors of some of the songs.
The questions arose as to (1) whether the oral discussions constituted a contract for the distribution of the publishing income, and, alternatively, (2) whether there was joint authorship of the songs for the purposes of joint ownership.
(1) The Court held that, on the evidence, the Parties had not proven on the balance of probabilities that the oral discussions legally bound Mr. Kemp to make payments to other members of the band in perpetuity. On the law, the Court held that the oral discussions did not satisfy the basic requirements of contract as there was no contractual offer, no intention to create a legal relationship, no acceptance of any offer but a mere unilateral declaration by Mr. Kemp, no consideration, and the terms were uncertain. Thus, there was no contract that legally bound Mr. Kemp to make payments of shares of his publishing income. (2) As to the copyright claim, the Court held that to be a joint author, a person must establish that s/he made a significant and original contribution to the creation of the musical work. The Court held that Mr. Kemp’s written songs existed as musical works before being reduced to material form by the band in rehearsals. Thus, Mr. Kemp was the sole author.
Word Count: 312 words
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