Cavalcade Records v Hho Multimedia
| Jurisdiction | England & Wales |
| Judge | Judge Birss |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWPCC 41 |
| Date | 27 March 2013 |
| Court | Patents County Court |
| Docket Number | Case No: CC11P04104 |
[2013] EWPCC 41
IN THE PATENTS COUNTY COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
His Honour Judge Birss QC
Case No: CC11P04104
Miss Joanna Pollard (instructed by Sheridans) appeared on behalf of the Claimants
Mr Chidiac (in Person) for the defendants
Approved Judgment
This is an action for infringement of copyright in a sound recording of a track. The track is "The Blues" (D Bentley) by the band Python Lee Jackson. The singer was the now famous artist Rod Stewart. It was recorded in the 1960s. The Claimant makes a business licensing music tracks, including this one. Cavalcade is represented by Ms Joanna Pollard, instructed by Sheridans. Mr Chidiac of the Defendant spoke on behalf of the Defendant Company.
The Claimant's title to the copyright and the sound recording and the infringement by the Defendant, HHOM, is admitted. The circumstances in which infringement took place are that HHOM licensed the track, along with a package of other tracks, to Cleopatra Records in two agreements in May of 2009. The two agreements are called the "Download Agreement" and the "Audio Licensing Agreement." As a result, Cleopatra released the track onto iTunes and Amazon as part of an album "Early Classics" by Rod Stewart. Also, it was available by a single download. Later in these proceedings it emerged that the track was also being exploited by a sister company of Cleopatra called Deadline Records on an album called "Backstage Rock."
The issues I have to decide concern relief. The major issue is the Claimant's claim for damages.
Damages
I will take the proper measure of damages in this case to be a sum which represents the licence fee a willing licensor in the Claimant's position and a willing licensee in the Defendant's position would have agreed upon. Of course, in practice no such agreement took place. The Defendant's position is that although the advance paid by Cleopatra was £25,000, this was for the whole collection of tracks licensed, a large number of artists and very many tracks. The track in this case is worth very little. HHOM has earned a few hundred pounds at most from this track.
Mr Fogarty was the main witness for the Claimant. He is the managing director. He gave evidence of various licensing deals done by the Claimant, either for the track alone or for groups of tracks, including this one. His view is that a sum of about £10,000 to £14,000 would be a fair reflection of what a proper licence fee would be in this case. He emphasised that he would not in fact have ever licensed HHOM to exploit the track in the manner in which they did.
The licences Mr Fogarty refers to in his evidence, have fees of the order of a few thousand pounds. None, as far as I can see, are as much as £10,000 to £14,000. There is one example of $10,000 to Fuel[?]. Mr Chidiac pointed out that in the Cavalcade licences the track in question often goes with two other Rod Stewart/Python Lee tracks. They are called "In a Broken Dream" and "Doing Fine." The track, "In a Broken Dream" was an international hit. "The Blues," has not been. I should also bear in mind the nature of the rights licensed under various licence agreements in making a comparison.
Ultimately, I am struck by two matters. First of all a case came before Master Bragge in 2002. That was a decision of Master Bragge between Cavalcade Records v. Alma Frame Limited, heard on 3 rd January 2001 and I believe judgment given on 31 st January 2002. This related to the same track. The conclusion that Master Bragge reached in that case was that a fair licence fee for the infringement which had taken place was £2,000.
The second important matter which I am struck by in Mr Fogarty's testimony is his evidence about two licences which relate to the track itself on its own. One licence is to Spin Music for £3,000 in 2005 and the other is to Merlin Productions for €3,250 in 2011. The former related to an album "Scotland Forever" to be given away with a newspaper. The latter was for the use of the track in a French television programme.
I am quite satisfied that the suggestion of the Defendant that a non-returnable fee would have been as low as a few hundred pounds is wrong. However, also in my judgment, Mr Fogarty's proposal of £10,000 to £14,000 is inflated. I find that a proper licence fee figure in this case would be £3,500.
Additional Damages
The Claimant submits that I should award additional damages under s.97 of the Copyright Designs and Patents Act 1988. Ms Pollard referred me to the judgment of His Honour Judge Michael Fysh QC sitting in the Patents County Court in Harrison v. Harrison. [2010] FSR 24. In that case Judge Fysh said as follows:
38. Additional damages have been claimed against all the Defendants and this was done by amendment to the Particulars of Claim some six months after commencement of proceedings. The relevant section provides for the possible award of additional damages where infringement has been proved (as here) and provides:
"(2) the Court may in an action for infringement of copyright having regard to all the circumstances and in particular to:
(a) the flagrancy of the infringement, and;
(b) any benefit accruing to the defendant by reason of the infringement,
award such additional damages as the justice of the case may required."
The remedy is evidently discretionary and it was common ground that the decision on such a claim falls to be made by the trial judge, even though its assessment will await the general enquiry.
39. Counsel addressed me on some relevant law. In Ravenscroft v. Herbert [1980] RPC 193 the Spear of Longinus case, Brightman J held that flagrancy implies the existence of some degree of scandalous or deceitful conduct and included deliberate and calculated infringement. "Benefit" implied that the defendant had reaped a pecuniary advantage in excess of the damages he would otherwise have had to pay. In the field of infringement of literary copyright at least this, I think, still the leading authority on additional damages. However:
(a) benefit to the defendant in this context is to be interpreted widely and not just in financial terms. That is Redrow Homes Limited v. Bett Brothers [1999] 1 AC 197 to 209 and;
(b) a deliberate act on the defendant's part was not essential for a finding under the section. Carelessness sufficiently serious to amount to an attitude of, could not care less, was sufficient to aggravate infringement; Nottinghamshire Healthcare NHS Trust v. Newsgroup Newspapers [2002] RPC 49 at 52.
In addition there is no need for knowledge on the part of the Defendant that what is alleged to amount to infringement is indeed an infringement of copyright for an award of additional damages to be made. The Defendant's state of mind is irrelevant: Carla Homes (South) Limited v. Alfred McAlpine Homes (East) Limited [1995] FSR 818 at 838.
I accept Ms Pollard's submission that this summarises the law adequately.
The Claimant submits that in this case the infringement has been flagrant and deliberate. The...
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Original Beauty Technology Company Ltd v G4K Fashion Ltd
...damages awarded as (1) costs of enquiry agents and (2) sum equal to unpaid licence fees ([19]). 5. Cavalcade Records v HHO Multimedia [2013] EWPCC 41, HHJ Birss QC (as he then was) Copyright infringement – music £3,500 £3,500 No substantive reasoning beyond consideration of general principl......