Barrett v Universal-Island Records Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewison |
| Judgment Date | 15 May 2006 |
| Neutral Citation | [2006] EWHC 1009 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC 02 C00043 |
| Date | 15 May 2006 |
[2006] EWHC 1009 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Lewison
Case No: HC 02 C00043
Mr Stephen Bate and Mr Richard Munden (instructed by Hamlins) for the Claimant
Ms Elizabeth Jones QC and Mr Daniel Lightman (instructed by Eversheds) for the Defendants
Hearing dates: 16 th 17 th 27 th 28 th 29 th 30 th 31 st March 2006 3 rd 5 th 6 th 7 th April 2006
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this udgment and that copies of this version as handed down may be treated as authentic.
Introduction and parties 4
Approach to the evidence 4
The witnesses 5
Bob Marley and the Wailers: the early years 6
The contractual documents 8
The contract claims 9
The copyright claims 9
Money making: the general picture 10
The arrival of Don Taylor 10
The 1974 agreement 11
What the documents show 11
The contents of the 1974 agreements 12
The immediate aftermath 15
Natty Dread and Rastaman Vibration 16
Management changes 16
New advisers 16
A fifty-fifty split 17
Bob Marley and his companies 17
The 1975 agreement 18
The Media Aides agreement 20
Other agreements 21
Payments during Bob Marley's lifetime 22
Bob Marley's death and its aftermath 27
Previous claims by the Wailers 28
The 1986 New York action 28
The 1989 Jamaican action 29
The 1989 New York action 31
The 1994 Settlement Agreement 32
Devolution of title 39
The current claim and its progress 40
The strike out application 40
The first issues for decision 40
The effect of the 1994 settlement agreement 40
Introduction 40
Approach to construction 41
The context of the 1994 settlement agreement 42
The words of the settlement agreement 43
Should the 1994 settlement agreement be enforced against Mr Aston Barrett? 44
The position of the estate of Carlton Barrett 46
Cause of action estoppel 49
Introduction 49
The English test 49
New York law 50
Abuse of process 53
The test 53
Application: Aston Barrett 54
Application: the estate of Carlton Barrett 56
Estoppel acquiescence and laches 56
Estoppel 56
Laches 57
Application 58
The contract claims 60
The pleaded case 60
Was Carlton Barrett party to the 1974 recording agreement? 60
What Mr Barrett said 60
Island Records' version 61
Was Bob Marley an agent for the Barrett brothers? 66
The 1975 agreement 67
The Media Aides agreement 67
Trust of a promise? 68
What is the breach of contract alleged? 70
Unjust enrichment 70
Partnership issues 71
Music making: the general picture 72
A fraud on Danny Sims? 76
Music making: the documentary evidence 79
Music making: the specific compositions 80
Preliminary 80
Who the Cap Fit 80
Rebel Music (3 O'Clock Roadblock) 83
Talkin' Blues 86
Them Belly Full (But We Hungry) 87
Revolution 88
War 89
Want More 89
The DVDs 90
The copyright claims 92
Separate copyrights 92
Joint authorship 92
Derivative copyright 93
Who the Cap Fit 95
Licence 95
Effect of revocation 97
The performers' right claims 98
Introduction 98
The scope of the claim 98
The statutory provisions 98
A new right? 100
Consent to what? 102
Prior arrangements or agreements 103
Was there no consent? 104
Counterclaim 104
Result 105
Introduction and parties
Bob Marley and the Wailers were among the first reggae performers to burst onto the international stage. Bob Marley remained the best-known reggae performer until his untimely death from cancer in 1981 at the age of 36. This case concerns the claim by two former members of the Wailers, Aston ("Family Man") Barrett and his brother Carlton ("Carly") Barrett to a share of the income that is still generated from recordings and copyrights. Carlton Barrett was murdered in 1987; and his brother brings this claim on behalf of his estate, of which he is the administrator, as well as on his own behalf. The claim is put in various ways. In setting out the uncontroversial facts I acknowledge my indebtedness to the comprehensive written arguments prepared by counsel on each side (Mr Stephen Bate and Mr Richard Munden for the Claimant; and Ms Elizabeth Jones QC and Mr Daniel Lightman for the Defendants), which I have shamelessly plundered.
The primary claim is brought against the first two Defendants. The First Defendant, Universal-Island Records Limited ("Island Ltd"), used to be called Island Records Limited. It was the original party to a recording agreement made in October 1974 ("the 1974 agreement") on which Mr Barrett relies. The company formerly known as Island Records Inc ("Island Inc"), which was the party to another recording agreement made with Media Aides Ltd ("the Media Aides agreement"), ceased to exist on 30 November 1999. On that date all of its assets and liabilities were assigned to and assumed by the Second Defendant, UMG Recordings, Inc ("UMG"), which is thus its successor in interest. The Media Aides agreement also features in the story. Except where it matters I have generally referred to both these Defendants as "Island".
In order to resolve the issues in this case it will be necessary to examine events going back over thirty years; and also examine litigation that that has taken place in Jamaica and in the United States of America.
One of the defences raised by Island is that Mr Aston Barrett compromised his claims in settlement of the previous litigation; and that it is an abuse of process for him to bring the current proceedings, either on his own behalf or on behalf of his brother's estate. However, Island were not parties to the compromise agreement. The Third Defendant (Rita Marley) is Bob Marley's widow. The Fourth to Tenth Defendants are some of his children. They were parties to the compromise agreement; and have been joined in order to enforce that agreement in these proceedings and seek an injunction against other proceedings.
The Twelfth and Thirteenth Defendants claim to be the current owners of the copyrights in the disputed compositions. The Thirteenth Defendant ("56 Hope Road") is also the current owner of the rights to receive royalties under the 1974 agreement and Media Aides agreement. One of the subsidiary claims is that 56 Hope Road is bound by a trust of an obligation to pay royalties to the Barretts. The Eleventh Defendant was for a while the administrator of the disputed compositions in the UK.
Approach to the evidence
Most of the crucial events took place between ten and thirty five years ago. Many of those involved are now dead. I have been shown statements made by some of them in previous proceedings. Since many of the events took place on the other side of the Atlantic, some of the witnesses gave evidence by written statement only, so that their evidence was not tested by cross-examination. Some of the witnesses called to give oral evidence naturally have little independent recollection of the events in question. I have, therefore, placed considerable reliance on contemporaneous documents, and the inferences that can fairly be drawn from them. I have also tested the reliability of witnesses against the contemporaneous documents. In many instances a finding about reliability on events later in the story has helped me in coming to a conclusion on reliability about events earlier in the story. Partly for that reason I defer resolution of the conflicts of evidence about some of the contentious events from their place in the chronology until later in this judgment.
The witnesses
I should now say something more general about some of the witnesses whose evidence I did see. Some of the reasons for my general comments will become clearer when I deal with particular conflicts of evidence.
Aston Barrett ("Family Man"). Aston Barrett dropped out of elementary school without having learned to read or write. He still has great difficulty in reading. He was not at all interested in the business side of the Wailers; and left dealing with contracts and lawyers to others. As a result he had the greatest difficulty in answering any questions about business dealings. He was plainly close to Bob Marley himself, whom he trusted implicitly. At this remove of time, his recollection of events was hazy; and I also consider that, as often happens, he has reconstructed events in his mind according to how he would like them to have been. In short, I did not find him a reliable witness of fact when it came to business dealings. I deal with his evidence on musical matters in more detail later.
Ian Winter ("Natty Wailer"). Mr Winter is a musician who also looked after the building in which the band played and in which some of them lived. Without wishing to sound disrespectful, Mr Winter was not a core member of the Wailers; although he was more than just a hanger-on. I had the impression that he was doing his best to recall events as he perceived them. However, he was not in possession of the full picture and, not surprisingly after this lapse of time, his memory was hazy on details.
Errol Barrett. Errol Barrett is one of Carlton Barrett's children. His evidence was peripheral to the issues I have to decide. He has a strong sense...
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