Performance Rights – But really an excuse to write about Spandau Ballet

At Rod Laver Arena this week, a few of us sang our lungs out to Tears for Fears and Spandau Ballet.  It was great to see ‘Tony’, ‘Gary’, ‘Martin’, ‘John’ and ‘Steve’ once again, after a hiatus of only 25 years.  And with the first notes of “True” and “Gold”, the words of one of my team members started to die away:  “You’ll need good seats given it’s a ballet.”

What does this have to do with intellectual property?  Well, the hugs between Tony and Gary on stage can be starkly contrasted to the heated court battle between them a decade ago, over copyright royalties to the songs.

Tony Hadley has always been the voice of Spandau.  And weren’t we reminded of it on Wednesday night!  (sorry for the brief digression).  But Gary Kemp wrote all the lyrics and music.  He received half the publishing royalties and until 1988 gave the other half to the band.

The dispute that led to court action concerned whether this distribution was “a gesture of pure generosity” or the band’s entitlement by an agreement between the members.  Sadly for Tony Hadley, John Keeble (on drums) and Steve Norman (the saxophonist), Justice Park of the High Court in London determined that their claim “failed in its entirety” and that it was “unconscionable” for them to have asserted the existence of such an agreement.  The only band member who didn’t participate in the action was Gary’s brother, Martin Kemp, who was too busy playing Steve Owen, the resident villain on EastEnders.

So, other than wiping back the tears of joy and looking for signs of tension between the re-formed band members (Gary’s role as “our songwriter” was indeed acknowledged to the cheers of the crowd), Tony Hadley’s distinctive voice at Wednesday’s concert led to a discussion about his contribution to the success of Spandau, and the insufficient regard given to performance rights in copyright law.  Yes, it is sad we had this discussion.  But it really happened.

In our view, the interpretational aspect of Tony Hadley’s performance (resonant, emotional, very ‘new romantic’) is necessarily conjoined to the lyrics and music of Gary’s songs.  Together, they made Spandau one of the iconic bands of the 1980s.  It would be very difficult to substitute the lead vocals.  Yet copyright splinters these elements into a myriad of protectable rights: the literary work (lyrics), musical work (notes), sound recording (recorded song), and cinematograph work (video).  There are performance rights available but these are much more limited.  In Australia, they only permit the performer in his or her live performance to control recordings of the performance itself.

Unfortunately, as the disgruntled band members discovered to their detriment, copyright law simply doesn’t have a place for vocal interpretation as an integral component of the literary or musical work.  Therefore, whilst Justice Park acknowledged that Tony Hadley sang the songs “in his own memorable style”, he found that any changes Hadley did make were too immaterial to qualify him as a joint author.  It necessarily followed that the claims of John Keeble and Steve Norman were doomed to fail.

As we wandered off to find our taxis, the discussion turned to those bands we feel have depended on the lead singer for their success.  Our votes (in the limited time available) were for INXS (forget the TV show; Michael Hutchence can’t be replaced), Blondie, Boy George, and maybe the Rolling Stones.

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