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17 August 2020
In a long-running dispute, well-known musician Małgorzata Ostrowska took legal action concerning the use of songs, for which she had written the lyrics, against Grzegorz Stróżniak, her former colleague in the band Lombard and the composer and co-author of the songs. Lombard is one of the most famous pop-rock bands in Poland, where its songs have remained popular for almost 40 years.
Ostrowska was Lombard's vocalist from 1981 to 1996, during which time she wrote the lyrics to 21 songs. After she left the band in 1999, she began a solo career under her own name. Stróżniak is the leader of the band and its vocalist, keyboard player and musical composer. The band has continued with a new vocalist since 1999.
The dispute began in 2012, when Stróżniak withdrew his rights from the collective management organisation that looked after the band's repertoire and decided that everyone, including Ostrowska, had to obtain his consent, as composer of the music of their joint works, in order to:
The alleged reason for the above restriction (relating primarily to the publication of records) was to preserve Stróźniak's creative interests and supervision over the use of the works. According to Stróźniak, the possible publication of music compilations containing, among other things, Lombard's works would:
Notably, Lombard – with its new vocalist – had performed Ostrowska's songs and released albums containing new versions of the songs without her consent. In addition, Stróżniak had consented to other artists using the songs in question. However, despite Ostrowska's requests, she had not received any such consent.
Ostrowska claimed that such a restriction constituted a unilateral exercise of the copyright in the joint works, contrary to the Copyright Law, which requires that all authors must agree to exercise copyright in the entirety of a joint work. Based on the above reasons and the lack of Stróżniak's consent:
Thus, Ostrowska's income from such activities was reduced.
As the dispute could not be settled amicably, Ostrowska turned to the courts for help and asked for the right to manage the 13 disputed songs to be transferred to the collective management organisation for free, without the need to obtain Stróżniak's consent.
This dispute concerned the use of a joint work by co-authors. In accordance with Article 9 of the Copyright Law, co-authors are joint copyright holders and their respective shares are assumed to be equal. Each co-author may request that a court determine their share based on their contribution to the creative work (Article 9(1) of the Copyright Law).
Further, each co-author may exercise copyright in their part of the work which has independent meaning, notwithstanding the rights of the other co-authors. In order to exercise copyright in the entire work, the consent of all co-authors is required (Articles 9(2) and (3) of the Copyright Law).
In the present case, this means that:
The Poznan District Court held that the issue of co-authorship of the 13 works was undisputed, and that it was irrelevant that the works were associated with Lombard as the pertinent copyright belonged to natural persons (ie, the artist and the composer) (File XII C 314/18).
The court also confirmed that in the case of word and musical works, each party to the dispute may use their parts of the works in isolation to those created by the other party (respectively, the melody with different lyrics and the lyrics with a different melody).
With respect to the use of the works as a whole (in their original form), the court pointed out that Stróżniak had performed the full copyright in the joint works in an unauthorised manner exclusively by himself. However, Article 9(3) of the Copyright Law requires the court, when making a decision concerning the use of joint works, to take into account the interests of all co-authors without harming another co-author. The court's decision may replace the consent of the co-authors in this respect.
In view of the above, the court decided that both Ostrowska and Stróżniak may perform and record works of which they are co-authors in their entirety independently. It is the right of each co-author to act on the free market and to earn income on the same principles, which take into account the interests of all co-authors. In the court's view, this decision is consistent with the aim of creating joint works (ie, to present them to as many recipients as possible).
This decision concerns only the legal issues and not the manner in which the parties can actually use the works. It is in their interest to cooperate – for instance, by agreeing not to release records at the same time, which may limit the expected profits.
This case is notable as it explains the extent to which it is possible to use jointly created works in a fair way in case of a dispute between the artists. One co-author, a member of a music band, may not unreasonably prevent the other co-author (a former member) from using their joint work solely because the songs were created while both authors were members of the band and the songs were initially intended to be played by the band.
The outcome primarily benefits fans of Ostrowska's work as it will enable old hits to be brought back to life. However, an appeal has been lodged, so this decision is not final.
For further information on this topic please contact Szymon Gogulski or Jacek Zwara at Soltysinski Kawecki & Szlezak by telephone (+48 22 608 7000) or email (email@example.com or firstname.lastname@example.org). The Soltysinski Kawecki & Szlezak website can be accessed at www.skslegal.pl.
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