Bamgboye V Reed

Bamgboye v Reed, 2002 WL 31961976 (2002)
the court makes. The first defendant, Mr Reed, was earlier

known as Kwambe Achepong, but has changed his name
Bamgboye and Another v. Reed and Others by deed poll to Colin Nick Reed. He claims that it is he
TLC/100/02 who produced the music for Bouncing Flow. He says that as
High Court of Justice Queen's Bench Division far as Mr Bamgboye had any input, this was entirely at his
28 November 2002 direction, assisting him as a sound engineer, in other words
merely helping him to record his own ideas. He also denies
Neutral Citation Number: [2002] EWHC 2922 (QB) that Mr Bamgboye has any rights in the sound recording of
the piece that was eventually made. In so far as any question
2002 WL 31961976
of performer's rights arises, since he states that, in fact, it was
Before: Miss Hazel Williamson QC (Sitting as a Judge of the not Mr Bamgboye who did any performing but him, again he
High Court) denies that Mr Bamgboye has any performer's rights in that
Thursday 28th November, 2002 respect.
The second and third defendants, Mr Winston Brown and

Analysis Mr Daniel Wilson, are the vocalists on the Bouncing Flow
piece. They have attended throughout the trial in support
of Mr Reed. The fourth defendant, Relentless Records, like
the second claimant, takes no part and is content to be
Representation bound by the decision of the court. Relentless Records is the
record company that has subsequently published a version of
• Mr G Harbottle appeared on behalf of the Claimant. Bouncing Flow which was edited for commercial release.
• Mr N Reed , Mr D Wilson and Mr W Brown appeared
In Person.
The first, second and third defendants have appeared in person
throughout the trial. They were represented legally until,
JUDGMENT
I think, the week beforehand but then took over the case
THE JUDGE:
themselves. The first defendant, Mr Reed, took the main part
in presenting the case, and I would like to pay tribute to his
ability in doing so. Although he was not a lawyer, he had
This is a trial of preliminary issues of liability in respect
obviously worked hard, doubtless with the support of the
of a claim by the first claimant, Mr Anthony Bamgboye,
second and third defendants and some of his witnesses, to
and the second claimant, Sherlock Holmes Music Limited,
present the case and to make their position clear. He showed
which is his publishing agent, against Mr Nick Reed,
a good grasp of the material factual points, whilst sensibly
Mr Winston Brown and Mr Daniel Wilson and Relentless
accepting that as a non-lawyer he could not assist me with
Records Limited, as defendants. Mr Bamgboye with the
technical matters, particularly in an area of law so technical
second claimant, as his assignee, makes a claim to share in
as copyright. Although he was not trained in legal procedure,
the copyright in respect of the original musical work, the
he handled the presentation of both the evidence on the
copyright in respect of a sound recording and performer's
defendants' side and the presentation of their case very well.
rights, in relation to a piece of popular music, which I think
is of the genre described as ‘two-step’, and which is called
“Bouncing Flow”.
So as far as the story goes, perhaps the first point is about
22 years ago when a gentleman, now known professionally
as JG Braithwaite, had his first hit record at the age of 18 in
The first claimant is now aged 23, and he is represented by
the club and dance music scene. Shortly after that, he became
Mr Harbottle. The second claimant, in fact, takes no part in
involved with his own recording studios and has had, I am
this matter, it now having been accepted that any question
told, a successful career in the popular music industry since.
of the validity of the assignment does not arise. The second
claimant has elected simply to abide by whatever decision
© 2023 Thomson Reuters. 1

works there, and would obtain a greater or lesser degree of

Coming more up-to-date, in about 1996 Mr Braithwaite assistance from the technical staff.
acquired the lease of a recording studio in Whitechapel, which
eventually became known as the “A n R” Studios. Within
about a year, he was joined in that enterprise by his younger As far as the claimant is concerned, his involvement began in
brother by five years the first defendant who, as I have 1997. He was then 18 and was about to go to university to do
said, had adopted the name of Colin Nick Reed, but is also a degree in marketing, but his real ambition was to go into the
professionally known as Don E Bravo. I have been told, and music industry. He had studied music since childhood, and he
I have seen evidence, that it is a frequent practice in the pop had a certain amount of his own equipment. Although he was
or club music industry to have several pseudonyms, often a business student at college, he had attended music classes
for use for work in different capacities. Mr Reed told me as well and had been allowed to use recording equipment in
that he was inspired by his elder brother whom he wanted the sound laboratory there and attended for part of the media
to follow and who had sold him the dream of a career in studies course. He also had got so far as to pay to have work
the music industry. He very much respected and admired his of his own recorded so that he could provide demo tracks. In
elder brother as an artist and producer of pop music, and he this he had performed as a rap artist.
came into the business with vast enthusiasm to follow in his
brother's footsteps. He told me that Mr Braithwaite was his
mentor and that he had worked extremely hard and long hours In 1997 Mr Braithwaite placed an advert in “Loot” magazine
to achieve work of a good standard, which largely meant seeking hopeful youngsters in the music industry to come
work that would win his brother's approval, either directly or and see whether they could obtain work or were any use for
perhaps by obtaining recognition outside so as to bring his operations in the A n R studios. Mr Bamgboye answered
brother's approbation. I accept that he did work hard as he this advertisement and he did so as a keyboard player. He
said. had, in fact, studied piano to the level of Grade 3, but he
also took some tracks of his own that he had performed,
and played these to Mr Braithwaite. Mr Braithwaite listened.
It would not be right to say that Mr Reed became a partner Mr Bamgboye says that Mr Braithwaite appeared to like his
with his elder brother in the formal sense. JG Braithwaite was music. When Mr Braithwaite gave evidence, he said he did
definitely the “head honcho” (as he was described) at A n R. not really do so and was merely being polite, and encouraging
All the witnesses with any knowledge of the studio agreed a young man he thought might have talent.
on this. However, Mr Reed's position as younger brother of
the boss gave him a degree of status and, therefore, of some
authority over others in the studios. By the same token, his The upshot, at any rate, was that Mr Bamgboye was invited
relationship with Mr Braithwaite meant that he was indulged to attend the studios whenever he could during his university
by the boss on occasions where the same latitude would not course in order to learn the ropes. Initially, he would start
have been extended to others. as a trainee tape operator. Mr Braithwaite made it clear that
there was no money involved, but the opportunity was there
to learn all that went on in the studios and gain experience,
There were others involved in the studios. In particular, there and to use the studio during “downtime”, i.e. when nobody
was an experienced sound and recording engineer called Fidel else was booked to use it or when nobody senior wanted to
Rosales. The studios were primarily involved, as I understand use it, in order to practise, gain experience and possibly record
it, in trying to produce original works and publicise them so some of his own works. This Mr Bamgboye began to do. He
as to attract the interest of the clubs and disc jockeys and was apparently keen. He learnt from Fidel Rosales, and he
eventually, hopefully, the record labels, although I am told agrees that he learnt a very, very great deal because Fidel was
also that Mr Braithwaite had his own label, and on occasions very skilled. It seems as though he was there virtually every
he would press, as one has seen, records for distribution for spare moment. He began initially as a tape operator, learning
the club music scene and also burn limited edition CDs, which how to align the tapes, clean the heads etc, etc. He watched
were passed around in order to seek to stir up interest in the everything else and gradually moved on to other equipment.
pieces on the records. The studios were at times, however, also
booked by outsiders who, for a fee, could come in and record

I was told how music of this type, which is very often could use the studio at times when others were not there.
computer generated, was constructed. This may not be the He graduated on to other equipment and learned how to use
same everywhere, but, in basic principle, elements were various pieces of equipment as an engineer and how to get
recorded separately and then combined. The music would effects out of them. He had his own equipment at home, as I
be recorded first, with the different elements of music being have also said, and he was apparently building his own sound
put together on a loop to give a general basis of repetition bank of various sounds that might be useful in producing this
throughout the piece. These would come from the ideas of type of music. He learned a very great deal, but there is a
those involved in the production as to what would sound good difference of evidence as to how useful or good at the work
and would work as a piece. One probably started initially he actually got. He says, with due modesty, that he did get
with the appropriate tempo, putting in drums and a drum good at it. The defendants, and in particular Mr Braithwaite,
pattern and expanding on that, and then moving into providing say that he did not really do so.
baselines, melodies and so forth, adding sonority by adding
different voices on an electronic computerised equipment to
fill out, and flesh out the sound. Finally, there would be, at However, in 1999 Anthony Bamgboye and Hayley Blackman
times, effects and so forth that were inserted — sound effects, produced together two musical tracks under the group name
explosions, crashes, anything that seemed to the producer, the of Rhythm ‘n’ Blues. Miss Blackman was the vocalist, she
author of this work (who in this industry is usually described having a stage name of Lena Renvoir, and Mr Bamgboye
as the producer) — anything that would seem to him to be produced and engineered these two tracks. I think he also
appropriate to make the piece attractive and commercial. played on them as well. At any rate, these two tracks were
regarded as being sufficiently worthwhile to show to Mr
Braithwaite to see if they met with his approval, and they
To begin with Mr Bamgboye, as I have said, was a tape plainly did because the two tracks eventually found their way
operator. He does appear to have acted as a tape operator on to a demonstration CD that was pressed in a limited edition
for JG Braithwaite at some time initially, but this was not and which was called “Flava of the Underground”. This CD
successful. Mr Braithwaite told me that Mr Bamgboye really had ten tracks on it and the two in question, that were entirely
was not any good at it; he was too slow, and did not do the the product of Mr Bamgboye and Miss Blackman, were
job terribly well, so Mr Braithwaite went back to using Fidel known as “Grooving Me” and “So Beautiful”. There were
Rosales. two others tracks which are material. There was a track called
“Touch Me”, in which Mr Bamgboye featured as having
provided a mix for that track, although his view was that he
There were others who were involved with the studios. had actually provided a remix, which is a rather more radical
There was apparently another young engineer called Olivier, form of mixing, in the industry parlance that the defendants
who stayed only for a very short time after Mr Bamgboye and plaintiffs use. So he felt he was undercredited as far as
began his acquaintance with the studios. There was another that was concerned. He also felt that he had not been credited
engineer, I think called Damian Egan. There was a young at all for the tenth track, a piece called “The Sound of Music”,
lady called Hayley Blackman who was a vocalist and who which he said he had been involved in. So he was, no doubt,
was actually in the same class as Mr Bamgboye at university, pleased that his work was on this disc, but he and Miss
although they only met, so far as to speak to each other when Blackman were unhappy that they felt their work had not, in
she was brought down to the recording studio to see whether fact, been fully acknowledged in the printing on the inlay.
she too might do any work there.
Mr Braithwaite at this time produced, or instructed his

Mr Bamgboye's involvement at this sort of level went on for publicity people to produce some PR material in order to try
about three years, until the time that is material in this action. and promote “Flava of the Underground”, because he was
During this time he gained experience and, as I have said, he hoping that it would interest a record company, whereupon it
readily acknowledged that he learnt virtually everything he would have been expanded into 16 tracks. The other six tracks
knew from Fidel and, indeed, also from the first defendant. that were proposed would have actually required clearing
During this time he wrote some of his own pieces. He was other peoples' rights and, therefore, it would have been
also given the keys to the studio so that he could go in and expensive to put them on to a mere limited edition sampler

CD, if I can call it that. Mr Braithwaite says he was showing that Mr Bamgboye had been a great disappointment to him.
his generosity in assisting and encouraging young talent in He had not progressed and learned as much as he should have
allowing Mr Bamgboye and Miss Blackman to appear on this done, or how to work as well as he should have done. It was
particular record. The publicity material is, however, quite very frustrating dealing with him. He (Mr Braithwaite) did
generous in its praise of Mr Bamgboye and the work of his not think that Mr Bamgboye's work was particularly worth
that is actually on this label. Although Mr Braithwaite did not much, but Mr Reed wanted him to come back and he was
write it, it seems that he was quite content for this material indulging his younger brother. From that time on, therefore,
to go out. Of course, though, I recognise that any publicity Mr Reed would work with Mr Bamgboye, and he would be
material is bound to try and create praise for the work and responsible for Mr Bamgboye.
show it in as attractive a light as possible.
Bouncing Flow was apparently conceived in about July 2000.

The next event in the story is around April 2000. At this There is a difference of evidence as to how this came about.
stage, there was a big row between Mr Bamgboye and Mr As far as the music is concerned, the start of this was a session,
Braithwaite. Mr Bamgboye claimed that he had not been which everyone agrees, I think, was a major session, in which
credited with a piece of work that he had actually done, as Mr Bamgboye was involved with Mr Reed. Mr Reed agrees
I understand it, in studios next door that belonged to Fadi this. There were then two further sessions before the basic
Gregorian. It seems that Fadi was another producer, but the music was completed in a sort of rough cut. Mr Bamgboye
two studios were right next door to each other and the parties, says he was at all three sessions. Whilst he was not at the
as is the way of things, would often deal with each other beginning of the initial session (and this is common ground),
and were, no doubt, on friendly relations. However, when he says he came in when Mr Reed had a partial drum pattern
this record or CD was produced, Mr Bamgboye blamed Mr already laid on an eight bar loop. He says that from that point
Braithwaite for the fact that he had received no credit on he helped by adding further drums, such that at the end he
the publicity material and had a row with him, which was was creator, he would say, of half the drum element in the
in public. This was seen as being very disrespectful and was piece, although he accepts that Mr Reed added snare patterns
quite out of order in the sort of culture that the studios had. Mr and obviously had created what was already on the tape.
Braithwaite said he knew nothing about what had gone on; Mr Bamgboye also says it was he who, in effect, composed
it was Fadi's mistake and, indeed, a mistake at the printers. the eight bars which provided the baseline, a subsidiary or
Mr Bamgboye, however, was very angry and stormed off. “busy” baseline, and were further recorded with string parts
In consequence, Mr Reed asked him for the keys to the and became, with a slight variation, the melody of the piece.
studios back and he gave the keys to the studios back and then He also says that he added “crashes”, which I think are cymbal
apparently disappeared for several weeks. effects.
It was all particularly unfortunate because, in fact, Mr Mr Reed says that, as far as this one main session was
Braithwaite was not at all to blame and the problem had concerned, it was one which he initiated, but he accepts that
indeed been a mistake at the printers. Some time later, it is Anthony arrived part way through. However, his account is
said that Mr Bamgboye wanted to return to the studios, and that he (Mr Reed) had brought in a tape of another piece,
Mr Reed says he managed to make peace with Mr Braithwaite which had the various parts all recorded on separate tracks.
who had been extremely angered at the row and the public He had taken out (“muted”) the parts of those tracks that he
disrespect for him. Mr Bamgboye says that he apologised. Mr did not want in order to isolate the drum pattern, and he was
Braithwaite, in evidence, said that he did not hear it. In other working on this track when Mr Bamgboye arrived. Indeed, he
words, if there was an apology he did not feel it was really produced part way through the trial — this was no fault of his,
made clearly and generously enough. The upshot was that it was a document that had already been sent to the claimants
through Mr Reed's good offices Mr Bamgboye came back but had not been taken up — an account of I think, a CD or
to A n R Studios, but Mr Braithwaite had decided that Mr possibly works on a tape known as “Dre Day 2”. The original
Bamgboye was now entirely Mr Reed's responsibility, and recording had been “Dre Day 1”, but he had taken this into
he told me in evidence he would not have had Mr Bamgboye the studio and recorded parts of it separately to save it under
back on his own account. As I have said, his evidence was a different name on the computer, so that he would not record

over “Dre Day 1” and lose it. He was working from “Dre Day chorus, and either three or four verses, written in around about
2” and I have been provided, and everyone was provided, with 45 minutes to an hour. It might have been a bit longer than
printouts from the Logic Audio files of this piece. These show, that, but that sort of order. They then came back to the studio
in visual form, the muscial parts that are actually recorded and they recorded the vocals and, of course, the vocals were
on the various sections or tracks of the computer files that recorded on a separate track so that they could be played
will produce the music when they are activated and played. separately and edited as necessary later.
He agrees that Mr Bamgboye attended part way through,
although he was not perfectly clear as to exactly what point
he reckoned he had got to when Mr Bamgboye came. Then the next thing that happened was the mixing session.
There were two sessions, fitting the music and the vocals
together. Again, Mr Bamgboye says that he attended and was
Mr Reed's evidence was to the effect that it was he who had instrumental in carrying out this work, which involves sorting
completed all the drum parts, and that he had composed the the vocals into the right order and playing the music and
musical lines himself, using the keyboard and using the Logic organising the music, editing it to fit. The consequence was
Audio program, subsequently, to amend via the computer that by some time around 14th July 2000, (which is the date
the length or the pitches, (possibly) of various notes. This is on a computer file, a copy of which has been supplied to me)
something which could be done laboriously as an alternative there was what one might call the basic tape. It may have been
to playing in the notes that one actually wants on the keyboard a tape or it may have been a different medium, but at any rate
itself. Mr Bamgboye's assistance, therefore, had consisted one now had the basic “Bouncing Flow”, a five minute long
only of being engineer: in other words, helping him to get piece of musical backing and vocals.
the sound he had envisaged. In so far as Mr Bamgboye had
used the keyboard, Mr Bamgboye had only done so in order
to play in pieces of music that were actually his ideas that he However, it was not yet entirely satisfactory in Mr Reed's
had given to Mr Bamgboye, it being more efficient to get Mr view, although I think Mr Bamgboye accepts that he would
Bamgboye to do it rather than for him to do it himself. So to probably have left it at this. Mr Reed was not satisfied and
that extent, Mr Bamgboye was acting as an engineer rather wanted to do more work. By this time A n R had moved out
than in any sense as a composer of the piece. There were then of the studios because the lease had come to an end and, in
two more sessions of tweaking at the music, which according fact, the next door owner, Fadi, took over. A n R had, at the
to Mr Reed, Mr Bamgboye did not attend. time, only a building that was in a fairly poor state which they
were going to convert into studios for themselves, but this
had not happened. Mr Bamgboye had equipment at his own
At any rate at the end of those three sessions there was a home. He had his own, or more accurately, his parents' PC,
rough cut of music for the Bouncing Flow piece which lasted which was capable of taking a sound card — that is one of
about five minutes, I think. Then came the question of finding the important items for producing music; you can do it on a
vocals, and it is common ground that Mr Bamgboye had no computer provided you have a sound card. He also had some
part in this at all. The vocals were laid down by the second equipment at home which he had borrowed from A n R. It
and third defendants. These two gentlemen already knew Mr was common ground that he had taken back, I think, a mixing
Reed from their shop, which I think is primarily the brainchild machine and he also says that he borrowed various other
of the second defendant, Mr Brown. It seems to be involved items. One in particular, a DAT (digital audio tape) machine
in various community projects of all sorts, not just music, and had been borrowed somewhat earlier. There is a difference
doing worthwhile work with young people in the community. as to whether it was borrowed especially for the purpose of
Mr Brown had been asked by Mr Reed to do the vocals and recording “Bouncing Flow” or whether Mr Bamgboye had
he brought along Mr Wilson as well. At the time they came simply borrowed it for his own use and was allowed it as a
to the studio, the evidence is that Mr Reed was interviewing matter of generosity. There was also a microphone of A n R's
an engineer for a post, so after some playing with the rough that was brought to Mr Bamgboye's house in anticipation of
cut of the backing track to get the feel of it, Mr Wilson and work that was going to be done.
Mr Brown were sent off to the canteen to have a cup of coffee
and to try and write some vocals. They wrote the verses and
the chorus of Bouncing Flow then and there. There was a

On 17th August, there was the first of the recording sessions that whoever's an original idea had been, if Mr Reed liked it
that produced the final version of “Bouncing Flow” from A n it would stay in, but if Mr Reed did not like it it would be
R's point of view. It is common ground that Mr Reed brought deleted. However, if he did not like something that Mr Reed
the tape of “Bouncing Flow” to Mr Bamgboye's house. It put in, it would still stay in.
was then to be further worked on on the computer, and to
do this it was necessary to transfer the music from the tape
into the computer so as to use the Logic Audio files with it. Mr Reed then took away the final version of “Bouncing
I think it was this occasion when Mr Reed came with Mr Flow” and the A n R equipment at this stage, and he left saying
Wilson. Mr Wilson attended one of the two occasions that I something along the lines that he would “be in touch”. There
am referring to, and a friend of Mr Bamgboye's, a Mr Ruti, is a disagreement as to whether the implication of this was
was also present, although he was busy composing a CV for that Mr Reed was going to keep Mr Bamgboye informed
himself on some other computer equipment and was therefore about efforts to market “Bouncing Flow” or whether this was
only half listening to what was going on. merely a polite departure indicating that, no doubt, they would
see each other again some time soon. Mr Bamgboye says he
then heard nothing. He drifted rather apart from A n R at this
It was at this session that the tape was “chopped” and time. Mr Reed and Mr Braithwaite were busy building their
embellished with further effects to make it more interesting. studios, and Mr Bamgboye had by this time teamed up with
The chops involve taking pieces of the tape and repeating another engineer, a Mr Lee Guest, with whom he has since
them several times, one after another. That technically been collaborating.
describes a “chop”, and there were a set of these in the first
verse, which was known as the “Geronimo” verse. A small
simple chop at the end (I think) of the second verse was also However, Bouncing Flow did excite interest. The people who
put in. There were also further embellishments with sound were involved in producing it had taken upon themselves the
effects I have indicated, such as explosions, possibly whistles name of “The K2 Family” and under that name in December
and so forth, to make the track more interesting. I think the 2000 the piece was pressed up and circulated around the
whistles may have been there already, and it was primarily clubs. As a result, a deal was signed with Relentless Records,
the explosions that were the further sound effects. Also at this evidence by a deal memorandum signed in March 2001. It
stage, some earlier credits that had been given on the tape was signed between the first three defendants as, effectively,
were taken out because they were personalised and, therefore, the owners of the Bouncing Flow piece.
would not be appropriate for a general tape.
Some time around this time Mr Bamgboye contacted Mr

On 21st August, there was another session at Mr Bamgboye's Reed again and asked what was going on. Possibly as a
house. At this stage, there was apparently some further final result (Mr Reed says) of Mr Bamgboye's being somewhat
editing, of the type I have indicated, and mastering was done. dismissive about A n R's achievements and standards,
This is the last operation, and involves adjusting the levels of Mr Reed told Mr Bamgboye of the K2 Family's good
sound on the various sections so that their balance with each family fortune in having promoted interest, but said that Mr
other is regarded as being the best for the piece. Bamgboye was no longer part of it. He was not welcome
and (in the vernacular) he was “not rolling”. Mr Bamgboye
spoke to Mr Reed later on the telephone and said that his agent
During these sessions, Mr Bamgboye says he was wanted to see him about Bouncing Flow and, in particular,
collaborating with Mr Reed and was acting as a co-author/ about rights in Bouncing Flow. This incensed Mr Reed and
composer/producer of the piece. Mr Reed says that Mr Mr Bamgboye very much got a brush off. Mr Reed was
Bamgboye was merely again the engineer implementing his affronted by this approach. He told me he would have been
ideas. He says Mr Bamgboye says he operated the equipment, prepared to discuss an engineering fee, because he accepts
and I think that is not in dispute. Mr Bamgboye, though, that Mr Bamgboye had done some work on the piece, but it
says some of the ideas were his, although he does accept that was not in order for Mr Bamgboye to be seeking to claim he
throughout the whole operation Mr Reed would have had had any rights in the piece itself.
the final say on anything. In evidence he accepted, in effect,

In June 2001, Mr Bamgboye, however, registered his claim Then, when one looks at descriptions of “works” and related
— and I think by this time it had probably been assigned to the provisions, one finds at section 3 that the description “musical
second defendant — to rights in Bouncing Flow and the other work” means:
tracks that he had worked on which might be commercial.
These I think were the tracks that appeared on “Flava of “A work consisting of music, exclusive of any words or action
the Underground”. This action started shortly afterwards in intended to be sung, spoken or performed with the music”,
September 2001, there having been solicitors' correspondence and under section 3(2) it is prudent that:
since immediately after the telephone conversation between
Mr Reed and Mr Bamgboye that I have referred to. (I think
it was a telephone conversation rather than a conversation in Copyright does not subsist in a musical work unless and until
person, but it is not material.) As mentioned earlier, the two it is recorded in writing or otherwise”, and “references in this
companies have taken no part today. Mr Bamgboye has been part to the time at which such work are made are to the time
represented by Mr Harbottle, and the three defendants have at which it is so recorded.”
appeared in person.
At this point I turn to the law, and I am greatly indebted So one is looking at copyright only in a work that has been
to Mr Harbottle for his help with this. There is always a recorded. Hence questions arising here are as to the input into
heavy burden on counsel appearing against litigants who do the various recorded versions of the piece that came to be
not have legal representation because they have to help the known as Bouncing Flow.
court to see both sides of the case. In an area of law as
complex as copyright this is particularly important, and I
would say that Mr Harbottle has discharged this burden on I can move on at this point to section 9(1) , because I am
counsel admirably. dealing with musical work. Section 9(1) says:
“In this part ‘author’ in relation to a work means person who

The law is to be found in the Copyrights, Designs and Patents creates it”, and then there are descriptions as to who that
Act 1988 . In regard to copyright, section 1 provides that: person is.
“Copyright is a property right, which subsists in accordance

with this part in the following descriptions of work”, and
under (a) one finds “original literary, dramatic musical or I will not deal with sound recording at the moment, and I can
artistic works” and I am concerned with an original musical move on to section 9(3) :
work. Under (b) one finds “sound recordings, films, broadcast
or cable programmes”. “In the case of a musical work, which is computer generated,
the author shall be taken to be the person by whom the
arrangements necessary for the creation of the work are
undertaken.”
Then there are various rights that subsist in copyrights, which

are dealt with at section 2 . The owner of copyright in a work So that is dealing with the case where one is looking at a piece
has the exclusive right to do the acts specified in Chapter of music which, in fact, is composed of computerised sounds.
2 as the acts restricted by copyright in the work of that
description, and this relates to various methods of reproducing
the material, and in certain instances a right to be identified Section 178 tells us what is meant by “computer generated”
as author or director of the work. and one finds that computer generated in relation to a work
means:

So that is the principle and the approach to deciding whether

“A work is generated by computer, in circumstances such that there is, indeed, joint authorship. I was additionally very
there is no human author of the work”. helpfully referred by Mr Harbottle to the case of Hadley v
Kemp [1999] EMLR 589 at 642. At page 642 to 644 there is
a summary of the authorities on joint authorship in the field
of pop music from which Mr Harbottle suggests, and I agree,
This section is therefore of background interest only in this that the following broad principles apply:
case.
• (1) whether a person is a joint author is a question of
degree;
The Act recognises the concept of a “work of joint • (2) the contribution must be to the creation of the
authorship” as meaning: musical work, not to its performance or interpretation;
• (3) the contribution does not need to be equal in terms
“A work produced by the collaboration of two or more authors of quantity, quality or originality with that of the other
in which the contribution of each author is not distinct from collaborators, but it must still be significant, and
that of the other author or authors”. • (4) the cases agree that if there are two or more
persons who are joint authors they own the copyright in
equal shares, but it is suggested that is not an invariable
rule because sometimes the authors may be joint tenants
As regards joint authorship, I was referred to the case of Robin rather than tenants in common and in that case until
Ray v Classic FM [1998] FSR 622 , and in particular to a severance there are no shares.
passage at page 636, beginning:
“A joint author is accordingly a person one who collaborates

with another author in the production of a work … (ii) who, Mr Harbottle submitted — and in my judgment this must
as an author, provides a significant creative input, and (iii) be right — that there is no requirement that joint authorship
whose contribution is not distinct from that of the other author. necessarily involves equality on a 50:50 basis. It would be
He must contribute to the production of the work and create possible for there to be, as it were, a joint ownership in
something protected by copyright which finds its way into unequal shares in principle.
the finished work — see Carla Homes v Alfred McAlpine .
Copyright exists not in ideas but the written expression of
ideas. A joint author must participate in the writing and share Finally, I refer to section 10(3) . It provides that:
responsibility for the form of expression in the literary work
[that, I would say, would apply to a musical work]. He must “References in this part of the Act, to the ‘author’ of a work
accordingly do more than contribute ideas to an author, he are, except otherwise provided, to be construed in relation to
must be an author or creator of the work in question. It is a work of joint authorship as reference to all the authors of
not enough that he thought up the plot of a play or made work.”
suggestions for a comic routine to be included or, indeed, that
he passed on his reminiscences to a ghost writer. It is not
sufficient that there is established to have been a division of
labour between two parties in the project of writing a book I should say that that point might have been material, because
if one alone is entirely responsible for the skill and labour there was at one stage an issue about the question of whether
of authorship of the work — see Filed Microsystems v Key Mr Bamgboye qualified as being entitled to protection for
Radio Systems .” copyright on the basis of his citizenship. However, since it is
now accepted that he is a British citizen and always has been at
the material times, and since the music itself was made within
this country, no questions of that type arise and they can be
disregarded.

So we are looking here at a method of recording for

There is another issue though which is that of employment reproduction, sounds that have been created elsewhere. Then
which has been raised by the legal pleadings that were put in section 5(a)(ii) provides:
on behalf of the defendant. Section 11 of the Act says with
regard to first ownership of a copyright: “Copyright does not subsist in a sound recording which is, or
to the extent that it is, a copy taken from a previous sound
“The author of a work is the first owner of any copyright and recording.”
it is subject to the following provisions … (2) where a literary,
dramatic, musical or artistic work or a film is made by an
employee in the course of his employment, his employer is
the first owner of any copyright in the work, subject to any Authorship and ownership of a sound recording is now dealt
agreement to the contrary.” with by section 9(2) A(a) of the Act. Having provided that the
author in relation to a work means the person who creates it
in section 9(1), section 9(2) says:
It is said on behalf of the defendants, and Mr Reed in “That person shall be taken to be in the case of a sound
particular, that Mr Bamgboye was really, in effect, an recording the producer.”
employee at A n R Studios and that consequently, even if
he did contribute to the extent of being able to claim any
copyright in works, he had done so in the course of being an
employee and consequently the copyright would still belong Again, under section 178 we now find the definition of
to the defendants, or rather in particular I think to Mr Reed. producer, which:
“In relation to a sound recording or film means the person

The question of assignments, as I have said, is no longer an by whom the arrangements necessary for the making of the
issue. That is dealt with in section 90 but there has been no sound recording or film are undertaken.”
point taken as to the validity or otherwise of the assignment
made by Mr Bamgboye of his rights to the second claimant,
and so that again is not an issue I need deal with.
So the different is the reference there to the making of a sound
recording as contrasted to the creation of a musical work, dealt
I need now go back to the claim in sound recordings. Sound with in section 9(3) .
recordings are provided with copyright protection under
section 1(1)(b) of the Act, which I have already read in
the material part. Section 5(a) of the Act deals with sound Identifying the relevant person is said to be a matter of fact,
recordings and states: and I have been referred helpfully to various authorities that
deal with that. These show, in particular, that “undertaking
In this part ‘sound recording’ means a recording of sounds these arrangements” effectively means to be responsible for
from which the sounds may be reproduced or a recording producing the sound recording in the financial sense or
of the whole or any part of a literary, dramatic or musical generally.
work from which sounds reproducing the work or part may
be produced regardless of the medium on which the recording
is made or the method by which the sounds are reproduced Mr Harbottle, in his closing submissions, drew my attention
or produced.” to certain authorities giving examples of the way in which the
court had approached the question of who had undertaken the
arrangements for the making of sound recordings and films,
because the same principles obviously apply. He referred me
to Adventure Film Productions v Tully [1993] EMLR 376
in which on an application for interim relief, the claimant

who provided the funds for a film that was actually shot arose as to who had undertaken the arrangements necessary
by others on its behalf, the funds coming from Channel 4, for the making of a film, and it was in that case decided they
was held to be sufficiently likely to be the owner of a film do include finance, but the question arising is who, in fact, is
copyright that a serious issue should go forward to trial. In directly responsible for the payment of the production costs
Mad Hat Music v Pulse 8 Records [1993] EMLR 172 , there rather than who is the person who might be the ultimate source
was a claim that the second defendant owned copyright in a of the funds. There is a passage in the judgment of Warner J
sound recording because, as the first claimant's manager, it which emphasises that in any case it is a question of fact who,
had made her available for the recording sessions, although in fact, made the arrangements. At page 361, he says, having
others, namely the defendants, had made other arrangements referred to two earlier cases:
which included paying for the studio time. It was held again
that this raised a serious question to be tried. “To my mind neither of these cases provides more than limited
guidance because each of them turned on its own facts … I
would add that in my view the words of section 9(2)(a) must
The case I probably found must useful was Century to some extent be construed in the light of those of section
Communications Limited v Mayfair Entertainment Limited 9(1). It has to be borne in mind that they are intended to define
[1993]. This was a case in which a film had been produced the person who creates the film.”
by E on the Chinese mainland, but to do this it had had to
bring in assistance from another company known as C, and it
was held that even though C was responsible for obtaining the
permissions and shooting the film, arrangements for making The reference to section 9(2)(a) was a reference to the
it had in fact been made by E, since E had initiated its making previous version of the Copyright, Designs and Patents Act
and organised the activity necessary for its making and paid which did not distinguish between sound recordings and films
for it. The particular passage that deals with this is briefly at but included them both in section 9(2)(a) . That has now
page 342 of the authority, where the learned judge said: changed in that sound recordings are dealt with separately in
section 9(2) A(a) , but the same point would seem to arise
“Looking at the documents and appreciating that Era and Mr Harbottle submitted, and I agree with him, that when
Communications could not make a film in mainland China Warner J used the words “create the film”, he was thinking
without the help of CCP, it is plain to me that the arrangements in terms of creating the physical recording or record of the
necessary for the making of the film were undertaken by Era film or the sound recording and not in terms of creative input,
Communications. There never would have been a film had which is the issue in relation to musical copyright.
Era Communications not initiated its making and organised
the activity necessary for its making and paid for it. To
achieve that purpose they had to invoke the help of CCP and There is a question that arises in relation to sound recordings
that Era Communications did. CCP made no arrangements, which are copies of previous recordings under section 5(a)(ii)
they simply helped Era Communications to make the film. (see above) because plainly in the context of a work that is
Accordingly, I find that copyrights subsist in the film in produced in the way this one was, what happens with the final
that Era Communications was its author and, as is agreed, version is that it is copies of previous recordings that have
Era Communications is a body which qualifies for copyright been made very often of previous recordings. So some issue
protection. By documents that are not challenged, C is the might in theory arise as to the extent to which sound recording
present owner of the copyright and Era has distribution copyright can be claimed in the entirety of one particular
rights.” version and I will deal with that as necessary.
Finally, there is a question of performer's rights, which are

So the copyright in the film was given to E in that situation. the rights of somebody who has made a performance. That
can be dealt with quite shortly. They are governed by Part
2 of the 1988 Act. They are independent of copyright in the
Finally, I should refer to the case of Beggars Banquet Records work performed or any sound recording of the work. They are
v Carlton Television [1993] EMLR at 349 . A similar question dealt with initially in section 181 of the Act. This Part of the

Act confers rights on a performer by requiring his consent to played and programmed the drum part together on a computer
the exploitation of his performance, and on a person having using a synthesizer and a sampler; the creation of the leading
recording rights in relation to a performance in relation to baseline on a synthesizer, other than a secondary single note
recordings made without his consent or that of the performer. baseline; the whole of the synthesized string section, which
It also creates certain offences. apart from the vocals consists of the melody of the song,
and certain chops, effects, noises and scratches, which Mr
“In this Part ‘performance’ means a musical performance, … Bamgboye contributed to the recording of the composition
(b), which is or so far as it is a live performance given by one when he carried out editing work to it on his own computer.
or more individuals and ‘recording’ in relation to performance Effectively, those are the elements which are claimed to be his
means a film or sound recording made directly from the live creative contribution to the music of “Bouncing Flow” and
recording.” there is a dispute as to that.
If so, though, the issue then arises as to whether Mr

Bamgboye made that contribution in the course of an
The independence of those rights is set out in section 184 employment with Mr Reed and therefore, whether Mr Reed
. The fact that this is a live performance is important and still owns the copyright in the music of “Bouncing Flow”?
it is submitted, and I accept, that there is no need for a There is, as I have said, now no issue with regard to the
performance as such to be in front of an audience. It would question of assignment of any copyright.
include performances in the recording studio — see Laddie
Prescott and Vittoric: Modern Law of Copyright and Designs ,
Third edition, paragraph 12.17. There is no concept of a joint The next issue identified is whether Mr Bamgboye was a
performance, and if any performance given by more than one person by whom the arrangements for recording the work
individual the result would seem to be that each performer is done in August 2000 were undertaken, as alleged in paragraph
entitled to rights in his part of the performance. 14 of the claim. This states that “Bouncing Flow” was edited
by the first claimant at his home on his own computer on
17th August. This process involved the skilled use of an audio
There is no provision in this context dealing with the position software programme to arrange the composition in a logical
with regard to employment, and no issue arises here. First, manner and to increase audio dynamics by adding effects,
I do not think this was ever actually pleaded on behalf of noises to the composition as well as the addition of chops and
the defendants originally, and when the point was put to scratches. The first claimant specifically extends the duration
them they elected not to amend their pleadings because their of the introduction of the composition and added special
case rests firmly, as they see it, on the facts of the matter. effects to give it more impact and excitement. Following
In that situation issues do not arise as to the position of a the completion of the editing process on 21st August the
performance in the course of an employment. Indeed, it would composition was mastered. Again, that assertion is disputed.
seem that a performer who is effectively ordered to provide a
performance by an employer may retain performer's rights in If it is found that Mr Bamgboye did make such arrangments,
that situation. However, that is not a matter I need to consider. again the question arises whether he did so in the course of an
employment with Mr Reed.
So, against that background, the issues that arise for decision Then, further issues arise as to whether Mr Bamgboye did
in this case were agreed between the claimants and the give a “performance” as alleged in paragraph 17 of the
defendants in essence to boil down to the following. Particulars of Claim. Here Mr Bamgboye claims performer's
rights in that, in the course of making the sound recording,
Firstly, did Mr Bamgboye make a significant creative which has been identified as the final version of Bouncing
contribution to the musical work, “Bouncing Flow”, as Flow taken away by Mr Reed on 21st August, he is alleged to
alleged in paragraph 5 of the Particulars of Claim? Which have performed the following parts of the composition which
refers to a contribution to the musical work as follows: 50 were recorded on the sound recording, approximately 50 per
per cent contribution to the creation of the drum part, on cent contribution to the creation of the drum part; the creation
the basis the first claimant, Mr Bamgboye, and Mr Reed of the leading baseline on the synthesizer and the whole of the

synthesized string section which constitutes the melody. That

is said to have been his “performance”.
Mr Reed, as well as giving evidence himself, called Mr
Brown and Mr Wilson to give evidence. Mr Brown was not
So the main issue is plainly the first, which comes down to present at any of the recording or editing sessions, apart from
whether authorship of the music of “Bouncing Flow” — and those involving the vocals. Mr Wilson did go to one of the
I emphasis that none of this concerns the vocals — is the sessions at Mr Bamgboye's house. He supported Mr Reed in
sole authorship of Mr Reed or is in part that of Mr Reed giving me evidence that in his view Mr Bamgboye was not
and in part that of Mr Bamgboye. I should make it clear doing anything but following Mr Reed's instructions in the
that in referring to the sole “authorship” of Mr Reed, I am course of this occasion. Of course, he appears on the same
referring to, effectively, the composition of this piece as I side in support of Mr Reed, so perhaps it is not surprising that
would probably naturally call it, but in the industry, as I his evidence should be tending in this direction.
have said, the relevant “author” is known as the “producer”.
Similarly, in terms of joint authorship it would be said that the
joint “producers” were Mr Reed and Mr Bamgboye. Mr Braithwaite gave evidence and his evidence seemed to
be intended to show that, really, Mr Bamgboye could not
have had creative input into this piece because he simply
This is a matter of fact and I consider the evidence as far was not capable of it. Mr Braithwaite was a very confident,
as the witnesses were concerned, Mr Bamgboye's evidence smooth and personable witness. He really lost no opportunity
was primarily his own evidence. He called Miss Blackman of saying how poor Mr Bamgboye's performance at the
and Mr Ruti, who was the gentleman who was present at studios had been, although he himself had only dealt with
one of the sessions, probably the 17th August session, at him for the first few weeks or months. I formed the view
his house. I did not find their evidence of a great deal of that he was plainly a partisan witness and I did not really
assistance, and Mr Harbottle conceded that really they were find his evidence of any great assistance except, I readily
of no help to me. Miss Blackman gave evidence mainly as to acknowledge, in explaining to me some of the technical terms
the way in which A n R dealt with people, because she felt in the pop music industry with which I had not been at all
that she had not been properly credited for her work in the familiar. Mr Rosales gave evidence and I found him to be a
same way as Mr Bamgboye had not been, but her complaint broadly truthful witness, although he had, no doubt, an eye
was perhaps a little mistaken. She had received credit under to the fact that most of his work is done with Mr Braithwaite
the title of “Rhythm n Blues”. Her complaint was that her with whom he is still in contact and with whom he still works.
vocal name of Lena Renvoir had not been acknowledged on Everybody thinks very highly of Mr Rosales' skills. However,
the “Flava of the Underground” disc. This may seem a little he could not really help me greatly as to what had happened.
trivial and, indeed, as far as the defendants were concerned, Although he was inclined to regard Mr Bamgboye as still
it was suggested that it really was nothing much to complain having been largely a trainee engineer, he could not really say
about because she certainly had been credited. However, to a whether, or at what point, Mr Bamgboye would have progress
young performer on the way up, it might well be that this was beyond that sort of description. However, that, of course, is
a matter of importance. Nonetheless, it is not something that a matter of subjective appreciation and judgment in the mind
assists me greatly, if at all, in determining who was the author of the person making that judgment.
of Bouncing Flow itself.
The main elements of the case depend on the direct conflict of

Mr Ruti, although present on 17th August, heard Mr evidence between Mr Bamgboye and Mr Reed. Mr Reed and,
Bamgboye working on something. However, when he was indeed, all the other witnesses on his behalf, denies there was
questioned about it, it seemed that what he had heard was any collaboration between him and Mr Bamgboye. His other
Mr Bamgboye actually working on a complete remix of witnesses say they never saw any evidence of this and indeed
“Bouncing Flow”, which involved taking the vocals and they did not believe it could be. Their view, however, was that
putting entirely new music to it and was not, therefore, on the being a “collaborator” really depended on some kind of prior
face of it, part of the eventual musical work sound recording agreement. They felt that they could only be “collaborators”,
that is in issue here. i.e. that that word was only appropriate, if there had been at

least some kind of oral arrangement to this effect. I understand does not necessarily mean that he was not telling the truth. It
their point of view but really that is not the point. One has seems to me though, as a question of reliability, that as a result
to use some word to describe a relationship and it may well of a lot of his evidence being given rather more on the basis
be that “collaborator” is the only word available to describe of effect, he had a less scrupulous regard for perfect accuracy
two people working together. However, the point in issue here in trying to help me than I felt Mr Bamgboye was displaying.
is simply the fact of who provided to the creative input and
the making of the arrangements for getting the creative input
into the piece that was recorded. It really is not, therefore, a In this case, the defendants say that I should not believe Mr
question of whether Mr Bamgboye would have been thought Bamgboye's evidence because his motive is that, having seen
of as a “collaborator”, in the way that word might normally this piece, “Bouncing Flow”, for which he did nothing more
be used in the industry. The question is, was Mr Bamgboye, than really be an engineer, has had some commercial success,
in fact, instrumental in having creative input into the music as he has his eye to seeking to gain something out of it. On
it became created in the version that finally became recorded? the other hand, Mr Bamgboye says that really this case has
been dogged by an attitude from the defendants that he has
demonstrated ingratitude to them. He having been, he admits,
This is obviously a matter of impression from the evidence. It a trainee at their studios and having learned much of what he
is quite plain to me that feelings run very high in this case and knows from them, they somehow have the idea that for him
I have allowed for that in my appreciation of the witnesses. In now to seek to assert that he has any rights to the material
the end, therefore as I have said, it is very much a matter of he has created is impudent and out of order. This underlying
the conflict between Mr Bamgboye and Mr Reed. attitude is what has really caused the problem because his
contribution simply has never been recognised.
Mr Bamgboye gave evidence well. He is clearly an intelligent

young man. He answered questions carefully. He frequently Mr Reed criticised Mr Bamgboye for inconsistency in his
spotted and was careful to correct, any ambiguities or evidence, suggesting that I should not believe him because
problems in the questions that he was being asked, or in the of discrepancies between earlier solicitors' letters that were
way he was being invited to give evidence. I was impressed by written. For example, originally he was claiming a half share
the fact that he often answered questions in a way which was apparently in the entire piece of Bouncing Flow rather than
plainly adverse to his case. He had no hesitation in accepting, only the music. It was also pointed out that some of the other
firstly, that certainly ideas were Mr Reed's, and, secondly, if ways in which his input was described, have turned out to be
Mr Reed had not liked what he heard, it would not have been rather different in later evidence.
in the finished piece. He was also dignified and restrained
against what was sometimes a somewhat patronising style of
questioning from Mr Reed for example in ordering him to I have looked at these inconsistencies and I have considered
“speak up”. I might have wondered if his dignity and restraint them. Mistakes such as these do often get made, firstly, when
was a put up front, except there were one or two occasions people may not be thinking accurately, or, secondly, when
when he did actually lose this and let fly a little, showing they are trying to convey ideas to others who are writing down
a degree of spirit and his feelings beneath. I found that this statements and who are interpreting the things that they say.
gave his evidence the ring of honesty. It also supported the I do not find that the inconsistencies, if such they be, in Mr
view I had formed, that he would be quite capable of being Bamgboye's evidence cause me to have any great concern for
moody and losing his temper and flying off the handle with his veracity. Nor do I find that they are sufficiently great that I
Mr Braithwaite. have misgivings about relying on the reliability of his account
in the evidence he gives.
As against this, there was Mr Reed. He is a gentleman full of

panache and bravura. He gave me a long history of the case Mr Reed, it was pointed out in response, also gave slightly
and, even allowing for the fact he was presenting the story differing accounts of how “Bouncing Flow” came to be
without the medium of a questioner, I had the impression I was constructed. For example, he was not clear, in relation to this
being given a confidently rehearsed show presentation. That first, and probably the main, occasion on which the work

was constructed as to when, in fact, the drum parts had been therefore, you do not put second grade work, or poor work, on
completed, and how far they had been completed before the first track on a disc; you put something that you think is
Mr Bamgboye came in. It was also suggested that his oral good. Mr Braithwaite chose, I think it was, “Grooving Me” for
evidence in chief was somewhat different from his evidence this spot. This seems to me to demonstrate that he did, in fact,
in cross-examination, as to whether strings and baselines had, find that Mr Bamgboye had a talent. Mr Rosales' evidence in
in fact, been added to drum patterns before Mr Bamgboye's still calling Mr Bamgboye a trainee engineer was to my mind
arrival. not particularly to the point. I find it significant that, in fact,
Mr Bamgboye did have the talent that put his work first on
this particular disc.
At the end of the day, I have come to the conclusion that I
prefer Mr Bamgboye's evidence on this topic. There are three
further points which I have taken into account in concluding The second matter is the question of playing the keyboards,
that he did have creative input, as he says, into this piece. the melody line. Whereas to me the melody line might seem
The first is the question of capability. As I have said, there to be the most important part of a piece of music, I accept that,
was a good deal of evidence from the defendants that Mr in the dance industry, other aspects, such as the rhythm, and
Bamgboye was merely an engineer. I cannot rely on Mr the drums, and the effects that go into it and are created, will
Braithwaite's evidence to this effect because to my mind it have a great deal of importance and perhaps equal degree of
was patently self-serving on the defendants' part, and he really importance with the melody. Nevertheless, the melody line,
was not closely acquainted with what Mr Bamgboye was and the baseline are significant fundamental parts of the piece
doing by the time we are concerned with in 2000. “Flava of and the question is, who composed those?
the Underground”, to my mind, tells against Mr Bamgboye
not having talent and, indeed, against Mr Braithwaite's not
accepting this. I do not rely too much on the publicity material As far as keyboard playing is concerned, Mr Reed initially
that Mr Braithwaite authorised because, as I have said, that said that he was as good at playing keyboard as the next
is bound to say nice things about the work on the particular man. However, he was invited to demonstrate how he could
disc, and Mr Braithwaite did not write it. But I find that it is a pick out the baseline in the piece, and when he did so it was
telling point that the very first track on “Flava” was one of the apparent that he had some difficulty doing so immediately. I
tracks that Mr Bamgboye and Miss Blackman had composed let him carry on doing so until he had more or less managed
entirely together. to pick out the eight bar piece, and it took him two or three
minutes. To be fair to him, I accept that if he had been at
ease in his own recording studio, not under the glare of the
Mr Braithwaite's evidence was that this was simply a random spotlight in court, and with his own equipment, he would
selection; this was a disc being put out to excite interest and have done so rather more quickly and rather more readily,
it did not really matter what went first. It was put to him that, but nonetheless it was apparent to me that he was doing this
in fact, logic would suggest that he would put his best work entirely and rather awkwardly, by ear. He had, as he accepted,
first. His response was that the logic of putting best work first no formal musical training. His flare, I find, is far more in the
would have meant that he put either his own work or Fidel's effects context. I noticed, for example, that when looking at
work first on this disc, which he did not do. I do not accept one of the Logic Audio files that sets out the music which he
that the placing of this track was a random selection, nor do was apparently humming as the baseline, he in fact hummed
I accept Mr Braithwaite's point in response. Mr Braithwaite a slightly different version — one in which the notes did not
had a name and, therefore, having his work further into the rise in the second part — rather than the version that he was
disc would still have meant that those who were interested in looking at. Also when he demonstrated the baseline, playing
it could be expected to pan through and listen to what he had on the witness desk with his fingers as to how the music went,
produced. he was, in fact, playing the first part of the theme the wrong
way up. He does not have musical training and, therefore,
whilst I quite accept he could get to the simple baseline by
However, it does seem to me to be obvious that it is very ear on a keyboard, I am not at all convinced that he could
important that the very first track that you put onto a disc ever have got to the rather more complicated — I think it is
should excite the interest and enthusiasm of the listener and, called the “busy base” — part of the composition. I do not

find it credible either, that he would have taken the time to

doggedly amend notes on the computer to produce the subtly
different versions of the notes, i.e. the lengths of the notes, that I therefore find that Mr Bamgboye did contribute the melody,
one sees on the printout of recording produced by the Logic and I also find that he contributed significantly to the drum
Audio files. To amend their length to such a minute degree as pattern and crashes, as he said. I find he contributed some of
is evidenced from what is actually recorded on the tape would the effects at his house. He, therefore, did have significant
have been extraordinarly pedantic and tedious. I also rather creative input into the making of the musical piece that was
doubt if he could have achieved the arpeggio line on his own, recorded as “Bouncing Flow”.
as it involves a very quick movement of intervals through
various notes. I find that this evidence suggests clearly that
these items were played in by human hand, and by somebody However, I do not find that this creative input is as great as
with at least a degree of formal musical training to enable the 50%, which he claims. He has more musical and original
them to do so. That can only have been Mr Bamgboye. creative talent in this regard than he has been given credit
for, but Mr Reed certainly has considerably more experience,
many more ideas and more flare, I find, as to the possibilities
I find, therefore, that I am perfectly satisfied that these lines of effects, embellishments and general arrangement of the
that have a melody to them, whether in the base or in the piece. I do not underestimate this. As I have said, it plainly
string part were, in fact, played in by Mr Bamgboye. I also contributes hugely to the character of the music. Mr Reed,
believe Mr Bamgboye when he says that this musical idea is for example, put in the “wobble base” and it was Mr Reed's
an idea that came from him, that he played it and volunteered ideas to put in the chops which are very distinctive. Indeed,
it and that Mr Reed liked it and therefore it stayed in. I am Mr Bamgboye acknowledged that they were Mr Reed's idea.
not satisfied that what was happening was that Mr Reed was I find that they all were. Mr Bamgboye also acknowledged
humming some kind of basic tune to Mr Bamgboye who was that ideas only stayed in if Mr Reed liked them and not if
therefore acting as no more than a kind of engineering scribe he did not. It follows that the ultimate selection of the ideas
in recording it into the machine. on the track was Mr Reed's and not Mr Bamgboye's, either
because they were Mr Reed's in the first place, or because
if they were Mr Bamgboye's they were selected, in effect,
The last thing that has confirmed me in the view that Mr by Mr Reed. Mr Reed's contribution was, therefore, greater.
Bamgboye did have creative ability, and was displaying it, is In the end, I have come to the conclusion on the evidence
the very fact that Mr Reed wanted Mr Bamgboye back after that their respective contributions are fairly represented as one
the row in April 2000. While I find that it is certainly the case third on the part of Mr Bamgboye and two-thirds on the part
that the defendants in their community will do things to help of Mr Reed.
other people, I do not think that they do something if there is
absolutely nothing for them in return. If Mr Bamgboye really
was not contributing something to the studios, I do not believe I want to make it clear what this means. Mr Reed was
that Mr Reed would have thought it worthwhile making the affronted, he told me, at the idea that Mr Bamgboye was
necessary peace with his brother to get Mr Bamgboye back. I accusing him of having been deliberately out to rob Mr
do not think this would have happened unless Mr Bamgboye Bamgboye of his “birth right”, as he put it. That is not what
had been extremely useful to Mr Reed. Mr Reed could easily I am finding. Mr Reed may well have come genuinely to
have got other engineers to do his engineering work for him. believe or convince himself that Mr Bamgboye did not really
I conclude that Mr Reed wanted Mr Bamgboye back, not contribute anything, in his own enthusiasm of moving into the
because Mr Reed was doing a novice performer a great big process of producing “Bouncing Flow”. He is very much into
favour by letting him be around, but because he actually the pop music world, he is a showman, and he is very forward
found him useful and helpful because of his ideas — and and ebullient. In his enthusiasm for producing a successful
these ideas were not confined merely to engineering because piece, it may well be that he has looked back and convinced
Mr Bamgboye was at times, in his enthusiasm, volunteering himself that it was he, and only he, that actually contributed
original ideas which Mr Reed was then able to take and to it, and this led him to fail to examine critically the extent
make use of. Consequently, they were indeed, on occasions, to which Mr Bamgboye had in fact contributed. This would
working together. have been reinforced by the fact that, subsequently, having

produced this piece that turned out to attract interest and be Neither was it, I find, a relationship in which it was obviously
successful, it would be difficult for him to admit to others that implied, as a matter of quasi contractual or contractual
he had had any significant help from Mr Bamgboye. This is relationship, that Mr Bamgboye would not be claiming to
not deliberate theft, but it is really a process of rationalisation. have any copyright in any work he did, but would surrender
Mr Reed may have convinced himself that something could this to Mr Reed or the studio. In relation to an employee under
not be the case, but I find that it was. a contract of employment, this is made statutory by the Act.
It may be that this is partly for the avoidance of doubt, since
it could be argued that if a work is created in the course of
The case has also, indeed, suffered from another aspect. Mr employment the employee is actually doing this on behalf of
Bamgboye was young — he was only approximately 18 years the employer in any event. However, in my judgment, unless
old at the time this was happening — and Mr Reed is about 12 it is clear, apart from employment, that there is a contract
years older than he is and Mr Braithwaite some 17 years older. or similar arrangement, such as a commission, under which
There was, I find, the kind of culture that Mr Bamgboye was one party surrenders contractual rights to another as a matter
a junior, which brought about perhaps a tendency to deny his of either express term or very clear implication the normal
rights. Mr Bamgboye, as a junior person, ought to be grateful position applies. Therefore, unless it is perfectly clear that
for the teaching and the opportunity that he was receiving and, a senior person involved as the quasi employer is intended
therefore, it was audacity for him to claim ownership of any by both parties to be entitled to the copyright in any work
part of “Bouncing Flow”, beyond any recognition which those produced by the junior person, the junior person is entitled
to whom he owed so much were graciously willing to concede to his copyright. I find that Mr Bamgboye had not, and did
to him. However, that is not the legal position. It is a question not, surrender any rights he had in his own original work, and
of objective fact whether Mr Bamgboye collaborated with Mr he was not an employee from whom such rights are divested
Reed in producing “Bouncing Flow” or whether he did not. under section 11(2) of the Act. This defence, therefore, fails.
I have found that as a matter of fact he did, but only to the
extent that I have indicated.
I turn next to the question of the sound recording. I have found
this rather difficult. It depends on the question who it was
I then turn to the question of employment. I need not take who undertook the necessary arrangements for the making of
long on this. I am perfectly satisfied that there is no question the sound recording. We are looking here at the question of
that Mr Bamgboye made this contribution in the course of the producer of the sound recording, and I remind myself of
an employment. In the first instance, it was suggested the the words of section 178 of the Act in relation to a sound
arrangement was not such as there was any intention to create recording or a film:
legal relations at all. This seems to me to have been the case.
If Mr Bamgboye turned up at the studios he would be able “The person by whom the arrangements necessary for the
to learn, people would be there and they would be willing to making of the sound recording or film are undertaken.”
teach him, but there was no obligation on him to turn up, and
there was no obligation on them to give him work. There was
no obligation on him to attend; if he did he did. There was no
job description of duties expected of him. He was not given
a wage. It was suggested that the availability of the studio in
downtime for his own purposes was effectively the equivalent The facts are really pretty much common ground. Mr Reed
of a wage, but I do not find that that was in any way indicative brought the tape of the previous version of Bouncing Flow
of a contract of employment which is what is required. It is no to Mr Bamgboye's parents' house. There was obviously an
different really, perhaps, from the young girl who goes down appointment arranged. It seems to me to be fairly obvious that
to the local riding stables in order to learn to look after horses Mr Reed must have said to Mr Bamgboye, “Let's do this work
and is also allowed to take them out. This is not employment, at your house” so that he would have made the arrangement,
it simply is not that kind of relationship. rather more than it being likely that Mr Bamgboye said to Mr
Reed, “I want to do more work on this, bring the tape around
to my house.” This is not least because Mr Bamgboye's very
fair evidence was that he would have thought that Bouncing

Flow was really complete by the time of the work that had the house and the equipment. If this had not happened, it could
been done at the studios, but that it was Mr Reed who was not have been done elsewhere. If that had happened it would
satisfied with it and wanted to do more. The tape was played have had to have been done by payment, but nonetheless
on A n R's machine that had been brought to Mr Bamgboye's the moving force, the person who got this recording made at
parents' house, but it was recorded onto a computer which the end of the day, seems to me to have been Mr Reed in
was, in effect, Mr Bamgboye's, although really it was his substance, rather than it being a joint operation by Mr Reed
parents' computer. I do not think there is any difference as far and Mr Bamgboye.
as that point is concerned. It was then edited and mastered
with Mr Bamgboye controlling the actual controls, although
Mr Reed who was sitting there, may very well have had some As I have said, I found the Era Construction, Century
dispensing part in this. A n R's mixer was not required or used, Communications v Mayfair Entertainment case helpful in
and the microphone was not required or used. this regard. Without Mr Reed there would not have been
the recording because he instigated everything, and the
arrangements that he got Mr Bamgboye to make were
In so far as he supplied the tape and the DAT machine to play subsidiary. It is right to say that Mr Bamgboye was assisting
its major musical component Mr Reed seems to have made in the recording and, indeed, possibly even contributing to
those arrangements. Indeed, supplying the tape seems to me parts of the recording, but I find that that was a part of the
to be quite similar to supplying the singer in one of the earlier artistic, or creative element of the creating a musical piece,
cases I have referred to. rather than part of undertaking the necessary arrangements for
the sound recording as such. In so far as Mr Bamgboye did
have any input that might be described as that, it was done
In so far as Mr Bamgboye supplied the premises and at Mr Reed's behest to this extent that it was even anything
the computer, it is said that he made the arrangements. that he did on his own behalf, perhaps by asking his father to
There is the possibility, therefore, of a joint making of let them have the computer in the relevant room, it was really
the necessary arrangements. So the question I have to not significant enough, and would have effectively been done
ask myself is, was Mr Bamgboye making those particular as part of having been asked by Mr Reed to get the premises,
arrangements independently as part of a kind of partnership and so forth, into position to make the final recording which
joint arrangement, so the answer to the question: Who made Mr Reed was organising.
the necessary arrangements for the recording, is that he
and Mr Reed did it together, or was he really making
arrangements, as requested by Mr Reed, so that in the end the As I have said, I have resisted because I do not think
substance is that Mr Reed did himself make the arrangements it is right, any temptation that there might be to look at
albeit to an extent through the medium of Mr Bamgboye as the separate parts of what was done and simply say there
his agent? It seems to me the question can be summarised in were jointly contributable arrangements. I have asked myself,
this sense: Looking at the cases, and remembering that it is rather, whether this recording would have happened if Mr
always a question of fact. Who was it who got the recording Bamgboye had not been involved, and my answer to that is
made (to put it in a colloquial way)? It is a matter of fact and that it would have happened somehow — although possibly
degree, and I find that at the end of the day the answer is that not in quite the same ultimate form, bearing in mind that
the arrangements were made or undertaken, by Mr Reed. he had some input into the actual structure of the recording
— but in principle a version would have been produced. Mr
Bamgboye was not crucial to the administration of getting
The cases are often concerned with financial arrangements. this song recorded, although he be said to have had some part
No payments were involved here, so the real question, is who in it. On the other hand, would it have happened without Mr
instigated the relevant recording and organised the activity Reed's involvement? The answer is “no”.
necessary for its making? Mr Bamgboye has agreed that he
would have regarded Bouncing Flow as finished, and it was
Mr Reed who decided that further editing, recording and I would add for completion, that insofar as section 5(a)
mastering was necessary. I find that it was Mr Reed who (ii) would prevent the arising of a copyright in the sound
arranged, as it were, to get Mr Bamgboye to make available recording of the final version of “Bouncing Flow” because,

base melody and the busy base and the octave parts on the
or insofar as, it was a copy of a sound recording of an earlier
keyboard into the computer. Was this a performance? I find
version of “Bouncing Flow” the position is even clearer, as
that it was.
the arrangements for making all such earlier versions were
even more plainly undertaken by Mr Reed.
Crown copyright
Now on to performer's rights. I have already made it quite 2002 WL 31961976
clear that I am quite satisfied that Mr Bamgboye played the
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Bamgboye v Reed, 2002 WL 31961976 (2002)

the court makes. The first defendant, Mr Reed, was earlier

The second and third defendants, Mr Winston Brown and

© 2023 Thomson Reuters. 1

works there, and would obtain a greater or lesser degree of

© 2023 Thomson Reuters. 2

Mr Braithwaite at this time produced, or instructed his

© 2023 Thomson Reuters. 3

Bouncing Flow was apparently conceived in about July 2000.

© 2023 Thomson Reuters. 4

© 2023 Thomson Reuters. 5

Some time around this time Mr Bamgboye contacted Mr

© 2023 Thomson Reuters. 6

“In this part ‘author’ in relation to a work means person who

“Copyright is a property right, which subsists in accordance

Then there are various rights that subsist in copyrights, which

© 2023 Thomson Reuters. 7

So that is the principle and the approach to deciding whether

“A joint author is accordingly a person one who collaborates

© 2023 Thomson Reuters. 8

So we are looking here at a method of recording for

“In relation to a sound recording or film means the person

© 2023 Thomson Reuters. 9

Finally, there is a question of performer's rights, which are

© 2023 Thomson Reuters. 10

If so, though, the issue then arises as to whether Mr

© 2023 Thomson Reuters. 11

synthesized string section which constitutes the melody. That

The main elements of the case depend on the direct conflict of

© 2023 Thomson Reuters. 12

Mr Bamgboye gave evidence well. He is clearly an intelligent

As against this, there was Mr Reed. He is a gentleman full of

© 2023 Thomson Reuters. 13

© 2023 Thomson Reuters. 14

find it credible either, that he would have taken the time to

© 2023 Thomson Reuters. 15

© 2023 Thomson Reuters. 16

© 2023 Thomson Reuters. 17

End of Document © 2023 Thomson Reuters.

© 2023 Thomson Reuters. 18

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