More Whiter

Robert Bernstein and Robert Clarida have jointly authored a column in the New York Law Journal today [$] on the joint authorship lawsuit in the U.K. involving the hit song "A Whiter Shade of Pale," which I discussed here.

They agree with Professor Patry that the decision almost certainly would have been different under U.S. law, and they go on to say:

"So the question thus arises: does [the successful U.K. claimant] get paid for U.S. exploitation of 'A Whiter Shade of Pale'? Under the U.S. Court of Appeals for the Second Circuit's ruling in Itar-Tass v. Russian Kurier, questions of ownership are to be resolved under the law of the source country of a foreign work, perhaps here the United Kingdom. Now that the United Kingdom has declared Mr. Fisher to be a joint author of the work, ... does that result govern, even though Mr. Fisher's claim would almost certainly be time-barred in the United States?.... All we know for sure is that [the case] has raised as many questions as it has answered."