4 September, 2019
In the world of music, there hasn’t been a shortage of controversy when it comes to musicians allegedly stealing work from one another. A few notorious legal battles involving our favourite musicians come to mind:
- Ed Sheeran’s “Photograph” vs Matt Cardle’s “Amazing”
- Huey Lewis’s “I Want a New Drug” v Ray Parker’s “Ghostbusters” theme
- Queen & David Bowie’s “Under Pressure” v Vanilla Ice’s “Ice Ice Baby”
- Marvin Gaye’s “Got to Give it Up” v Robin Thicke & Pharell Williams “Blurred Lines”
Ownership of music can also be complicated when recording studios are involved, since recording and publishing deals may require the musician to assign the copyright to songs they write/perform during an agreed period in exchange for royalties. For example, the recent Taylor Swift feud with her ex-label Big Machine Records revealed that Big Machine Records retained exclusive rights of her entire back catalogue of master recordings.
What does Malaysian law say about copyright in songs?
Sec. 13 of the Copyright Act 1987 affords protection to any work produced by an artist (including songs and music) by providing exclusive rights of control against reproduction, performance, distribution and commercial rental to the public.
As such, any reproduction of a song or music composition would need permission from the copyright owner. Such is to avoid the issue of plagiarism and non-payment of royalties to artists.
In Sheikh Abdullah Ahmad v Universal Music (M) Sdn Bhd [2017] 8 CLJ 79, the Plaintiff was an active singer in the entertainment business since the 1980’s. He entered into a contract with a recording company, Malaysian Recording Corporation (“MRC”) in 1983 to produce an album. The Plaintiff claims that he was entitled to 20% royalty from the sale of each album and/or songs from the album. The album eventually produced by the singer was owned by its producer, Nawab Production Sdn Bhd who then entered into a Sales and Purchase Agreement with the Defendant in 2005 (“2005 Agreement”).
The Plaintiff was informed that his album could be downloaded from iTunes for the price of USD 4.99. The Album had been uploaded by the Defendant. Thus, the Plaintiff claimed against the Defendant for performer’s rights under Sec. 16A of the Copyright Act 1987 and sought the 20% royalties from the Defendant.
The Court partially allowed the Plaintiff’s claim stating that the Defendant was liable to pay equitable remunerations to the Plaintiff when it uploaded songs from the Plaintiff’s album onto iTunes. However, the Plaintiff was not entitled to claim 20% royalty from the Defendant as it could not prove that such term existed in the 1983 contract.
Furthermore, the 1983 contract only binds the Plaintiff and Nawab Productions Sdn Bhd. As such, the 20% royalty can only be claimed against Nawab Productions Sdn Bhd.
An action should have been brought against Nawab Productions if the Plaintiff wanted to claim for the alleged 20% royalties based on the contract. Pursuant to the terms of the 2005 Agreement, the Plaintiff was only entitled to 8% royalty from the sale of his album from iTunes.
The above case demonstrates that musicians and their works are protected by copyright laws in Malaysia. However, signing a recording or publishing deal may have certain important ramifications on their intellectual property rights, which artistes should be aware of before signing on the dotted line. In Taylor Swift’s own words about her lack of ownership in her own records:
“This is my worst-case scenario. This is what happens when you sign a deal at fifteen […] hopefully, young artists or kids with musical dreams will read this and learn about how to better protect themselves in a negotiation. You deserve to own the art you make.”
For further information, please contact:
Amirul Izzat Hasri, Donovan & Ho
amirul@dnh.com.my
