(1) Experience Hendrix Llc (A Ltd Liability Company Formed Under the Laws of the State of Washington, United States of America) (2) The Last Experience Inc. (A Corporation Formed Under the Laws of the State of California, United States of America) v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Sir William Blackburne,SIR WILLIAM BLACKBURNE |
| Judgment Date | 30 July 2010 |
| Neutral Citation | [2010] EWHC 1986 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC07C00647 |
| Date | 30 July 2010 |
[2010] EWHC 1986 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROERTY
Before: Sir William Blackburne
Case No: HC07C00647
Philip Jones QC and Hugo Cuddigan (instructed by Eversheds LLP) for the Claimants
Geoffrey Hobbs QC and Emma Himsworth (instructed by Harbottle & Lewis LLP) for the Defendant
Hearing dates: 17, 18, 22, 23, 24, 25, 26, 29, 30 and 31 March and 19 April 2010.
Sir William Blackburne:
Introduction
These proceedings arise from an unlikely combination of events: a rock concert which took place in London in February 1969; the decision by The Sunday Times newspaper to cushion the effect of a 20p rise in its price to £2 by issuing free to purchasers of the newspaper a CD (known in the industry as a “covermount”) containing recordings of songs performed at that concert; and plans by two US companies, on their way to fulfilment in September 2006 which is when the covermount appeared, to launch a film of the concert together with accompanying DVDs, CDs and general merchandise associated with that already long-past event (“the Project”).
The concert in question, at the Royal Albert Hall on 24 February 1969 (“the RAH Concert”), was given by a three-man band led by the late Jimi Hendrix. The band was known as The Jimi Hendrix Experience. With Jimi Hendrix's consent two US citizens, Gerald Goldstein and Steve Gold, made separate sound and film recordings of the concert.
The claims in these proceedings are concerned with the band's performance rights in the RAH Concert (“the Performances”), namely the reproduction and distribution rights in the Performances, and in the sound recordings made by Messrs Goldstein and Gold of the Performances (“the Recordings”). It has been common ground between the parties in these proceedings that the Performances amounted to a “musical performance” within the meaning of section 180(2) of the Copyright, Designs and Patents Act 1988 (“the Act”) and that they were a “qualifying performance” within the meaning of section 181 of the Act. It has also been common ground that the Recordings qualified for copyright protection notwithstanding that Messrs Goldstein and Gold, as their authors, were at the time (and Mr Goldstein remains) US citizens.
The two claimants are US companies. Together, they assert title to the rights both in the Performances and in the Recordings. The first claimant got wind of the proposed covermount a few days before the appearance of the edition of The Sunday Times in which it was to be included. Its UK solicitors, Eversheds LLP, wrote to the defendant, which publishes and distributes the newspaper, informing it of their client's ownership of the performance and recording rights in songs performed by Jimi Hendrix and his band. (At that stage Eversheds did not know precisely what the covermount would contain.) They sought an undertaking that the covermount would not be issued. The defendant, claiming to have a valid licence to make and distribute a covermount containing the particular tracks, although without indicating to Eversheds which they were, refused to give the undertaking. The covermount duly appeared with the 10 September 2006 edition of The Sunday Times. In all, just over 1.56 million copies of the covermount were made, of which just over 1.37 million were included with copies of that edition sold and distributed in this country and in the Republic of Ireland. (The covermount was not included in copies sold elsewhere.)
The covermount contained ten songs. Two of them, Little Wing and Voodoo Child, were derived from mixes made in 1971 of the original four-track audio recording made of the RAH Concert by Messrs Goldstein and Gold. They had first appeared, quite lawfully, as part of an album called Hendrix in the West in 1972 and, again, on the Jimi Hendrix Experience box set which appeared in 2000. The other eight songs ( Room Full of Mirrors, Fire, Purple Haze, Wild Thing, Bleeding Heart, Sunshine of Your Love, Hey Joe and Foxy Lady) came, it is thought, from the monophonic Nagra film soundtrack recorded as part of the filming of the RAH Concert by Messrs Goldstein and Gold. The film had its own soundtrack which was quite separate from the special four-track audio recording made at the same time by Messrs Goldstein and Gold although both were made under the arrangements which they had agreed with Jimi Hendrix.
Quite how the monophonic Nagra recording came to be in circulation was not known. But it was common ground that a number of bootleg (in the sense of unauthorised) recordings (both audio and visual) of the RAH Concert were (and are) in circulation. I will return to this later.
The claimants contended that by authorising and procuring the making and free distribution of the covermount in this way, the defendant infringed their rights and caused them substantial damage
They issued these proceedings on 13 March 2007 claiming an injunction to restrain infringement of their rights in the Performances and in the Recordings, orders for delivery up and forfeiture of all infringing copies, an inquiry as to damages (including additional damages) or, at their option, an account of profits together (in either case) with an order for payment and interest. On 26 July 2007 they applied for summary judgment. The application came before Warren J on 13 December 2007. The only issue was whether, as the defendant claimed, the actions of which the claimants complained had been licensed. This ultimately turned on a purported licence which was said to be contained in a letter dated 27 September 1979 that had been signed by a Mr Bernard Solomon on behalf of the second claimant. The letter was addressed to a company under Mr Solomon's control called Everest Records Group. But there was also a suggestion that the licence had been granted sometime before 1979. Warren J acceded to a request by the defendant for an adjournment to enable Mr Solomon's evidence to be obtained in order to clarify the position. When the matter returned before him two months later, on 19 February 2008, a statement by Mr Solomon was available but it gave no support to the purported licence. The summary judgment application therefore succeeded. The order reflecting this result is dated 11 March 2008. It records summary findings of the claimants’ entitlement to the rights in the Performances and the Recordings and of the infringement of those rights by the issue of the covermount. Injunctive, including delivery-up, relief was ordered and, materially to the trial before me, an order made for an inquiry as to the damage suffered by the claimants by the issue of the covermount, alternatively, at the claimants’ option, an account of the defendant's profits by reason of the issue. Directions were made for the service of evidence by the defendant to enable the claimants to make their election.
On 16 May 2008 the claimants elected to pursue an inquiry as to damages. This is the judgment on that inquiry. It follows a trial which lasted 11 days.
Assuming, as the claimants invite me to hold, that damages are to be assessed on the basis of the losses which the claimants can show were caused by the issue of the covermount and assuming also, as the claimants further invite me to hold, that the losses for which they seek compensation are worldwide and are not confined to those suffered in the United Kingdom, a striking feature of the claim is that each claimant contends for a quite different sum as representing the overall losses which they say they have jointly suffered. The first claimant contends for a figure of the order of $8.94 million whereas the second claimant contends for a figure of the order of $17.4 million. These are calculated as at 10 September 2006 and do not include interest from that date. The defendant, by contrast, contends that if, which it disputes, the claimants are to receive any compensation at all it is to be assessed by reference to the fee that the claimants could legitimately have charged in September 2006 for a notional licence to permit it to make and issue the covermount. It says that the fee for a single event of that kind would not have exceeded £100,000 at the very most. It denies in any event that damages are to be assessed by reference to losses other than those suffered in the United Kingdom. I do no more than summarise in the barest outline two of the main issues.
I am not asked to fix the precise amount of the damages if I should find any to be payable. This is because of various imponderables in the calculations involved. Instead, I am asked to make a series of findings which, it is hoped, will enable the forensic accounting experts on each side to agree a final calculation.
Mr Philip Jones QC and Mr Hugo Cuddigan have appeared for the claimants and Mr Geoffrey Hobbs QC and Ms Emma Himsworth have appeared for the defendant.
Jimi Hendrix
Jimi Hendrix, who was a singer, composer and guitarist, had a short but meteoric career. Born in Seattle on 27 November 1942, he was persuaded to come to this country in 1966 by another musician, Chas Chandler (the former bass player with the Animals), where he joined with two British artists, Mitch Mitchell on drums and Noel Redding on bass guitar to form The Jimi Hendrix Experience. Their first single, Hey Joe, was an instant success. It remained in the UK charts for ten successive weeks in early 1967. It was followed by their first album, Are You Experienced? The band rose to international fame after appearing...
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