There is a lot to ‘legally’ unpack in these disputes.
Under English Law, ‘infringement of Performers’ rights’ is actionable as ‘breach of statutory duty’.
These rights, while similar to, are not as extensive as full ‘copyrights’.
They are also distinct and separate from an artist’s ‘copyright in a song’.
Performers’ ‘property rights’ are ‘assignable’, whereas their ‘non-property’ rights are not.
The mere fact that members of a pop group which trades as a ‘partnership’ give a ‘performance’, does not mean that that they are joint-owners of the ‘Performers’ Rights in the Performance.’
That is because each performer has ‘individual’ rights in relation to his contribution to the ‘collective performance.’
In Bourne v. Davis [2006] EWHC 1567 Ch, Mark Herbert QC, held (and this does not mean that his actual decision in that case was wrong – see below), that:
(i) performers’ property rights could become partnership property without express agreement by virtue of s.20(1) of the Partnership Act 1890; but
(ii) s.20(1) did not create a beneficial interest for the partnership in respect of such partnership property.
However, under English Law performers’ ‘property rights’ are ‘personal rights’.
These rights are comparable with the ‘copyrights’ in the ‘music’ and ‘lyrics’ in a song written by an individual member of the group, for performance by the group.
Furthermore, these rights have never been regarded as ‘partnership property’ in the absence of express agreement.
While ‘equitable interests’ can subsist in ‘performers’ property rights’, unless the partners execute a written assignment of their rights which complies with s.191B(3) of the Copyright, Designs and Patents Act 1988 (see: https://lnkd.in/e4RtiNRr), then each artist will retain ‘legal title’ to their individual performers’ rights.
In Music and Performer’s Rights Disputes, the litigation risk of a judge arriving at a conclusion about the Law, which (as it appears to me) is ‘doubtful’, can be resolved by entering into Mediation.
This risk is also relevent to the parties’ choice and appointment of Mediator (and co-Mediator), because if an eminent High Court Judge can state what appear to me, to be ‘doubtful’ propositions of Law, then what chance does a non-specialist Mediator have of helping the parties in dispute, to ‘do a deal’ that is based upon their actual Legal Rights under English Law?
Note that the decision in Bourne v. Davis [2006] was justified by other reasons given by the judge, so in spite of what the judge held as stated above, this does not mean that the actual decision in the case was wrong.