Legal Matters: Mixing Engineer's Case Reveals Tangled Web Of Rights

Creativity comes in all forms. Sometimes it rises to a level that copyright law protects, and sometimes it does not.

Mixing engineer Hopeton Overton Brown, known as Scientist, learned that the hard way. His copyright claims in sound recordings and compositions from a 1981 reggae dub album were rejected last month—but not for the reasons anyone initially thought.

Under current U.S. law, those who contribute creatively to a work share copyright interests in the work. Typically, for a recording this means the featured artists and the hands-on producer, who often contractually assign their rights to the label paying for the recording.

While most industry lawyers believe that mixes do not create copyrightable contributions since they are under the producer's or artist's ultimate control, some mixes or remixes could conceivably be creative enough to deserve a copyright interest, either as part of the original recording (a mix) or as an adaptation (a remix) of the original work.

A federal jury in the District Court in New York, however, applied 1911 English law in unanimously rejecting Scientist's claims April 20.

The claims were based on mixes Scientist did for the vocal and instrumental (dub) versions of an album titled "Scientist Rids the World of the Evil Curse of the Vampires" by Henry "Junjo" Lawes, one of the most prolific Jamaican producers of the early dancehall era. The work was done at King Tubby's Studio in Kingston, Jamaica.

Lawes, who is deceased, licensed the album to U.K.-based Greensleeves Records, which specializes in Jamaican music.

After Greensleeves licensed tracks in 2002 for use in the videogame "Grand Theft Auto III," Scientist filed a copyright infringement action, claiming rights in the compositions and sound recordings as the mixing engineer.

Greensleeves did not earn much money from the license, but the company decided to fight the claim on principle all the way through trial, says legal rep Catherine Fehler, a partner with London-based firm the Simkins Partnership.

After retaining New York counsel Louis Ederer, a partner with Torys, the lawyers began wading through a maze of Jamaican, West Indian and English laws.

The copyright law in effect when—and where—the works were created governed the rights, even though the lawsuit was brought in the United States.

Jamaica did not have its own copyright law until 1993. The lawyers did not find any West Indian copyright legislation, so the attorneys turned to the 1956 English copyright law.

But that law was never adopted in Jamaica or extended to cover Jamaican works, Ederer says. They were left with 1911 English law governing 1980s Jamaican works.

This act stated that copyrights in sound recordings belonged to the person who originally owned the physical material—whoever paid for the master tapes—and not the creators.

This is different from U.S. law, which generally grants initial copyright protection to the original creators regardless of who paid for the recordings.

As for the compositions, the 1911 law distinguished between independent creators and employees. If created independently, the copyright belonged to the creator. If created as an employee or an apprentice, it belonged to the employer.

This "commission" provision is similar to the work-for-hire provisions in U.S. copyright law.

Ederer says the evidence in Scientist's case revealed that Lawes paid for the recorded tapes, and Scientist was an employee or apprentice for the studio when he mixed the album. As a result, the jury decided that he did not hold any copyright interest. ••••