Clifford Davis Management Ltd v W.E.A. Records Ltd

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE BROWNE
Judgment Date21 October 1974
Judgment citation (vLex)[1974] EWCA Civ J1021-4
Date21 October 1974
CourtCourt of Appeal (Civil Division)

Appeal by first and second defendants from order of Mr. Justice Lawson on 11th October 1974.

Between
Clifford Davis Management Limited
Plaintiffs Respondents
and
W.E.A. Records Limited
First defendants Appellants
and
C.B.S. Records Limitedsecond
defendants Appellants

[1974] EWCA Civ J1021-4

Before

The Master of The Rolls

(Lord Denning) and

Lord Justice Browne.

In The Supreme Court of Judicature

Court of Appeal.

Revised.

Mr. FREDERICK DRAKE, Q.C., and Mr. HAROLD BURNETT (instructed by Messrs. Harbottle & Lewis) appeared on behalf of the Appellant First and Second Defendants.

Mr. D. HUNTER, Q.C., and Mr. NEVILLE THOMAS (instructed by Messrs. Clintons) appeared on behalf of the Respondent Plaintiffs.

THE MASTER OF THE ROLLS
1

We need not trouble you further, Mr. Drake. There is a Pop group of four or five musicians called

2

"Fleetwood Mac". The group take their name from two of their members, Michael Fleetwood and John McVie. The group have formed themselves into a limited company called Fleetwood Mac Promotions Ltd, The members are the directors and shareholders of it. I will call them "the group".

3

The manager of the group was Clifford Adams, known as Clifford Davis. He has now turned himself into a limited company: Clifford Davis Management Ltd. He and his wife are the sole shareholders, I will call It "The Manager".

4

The manager, by a written agreement, had agreed to act as agent and manager for the group. The group was successful. They made several tours to the United States of America and were well known there. In January 1974 the manager fell out with the group or they fell out with him. He went. his own way; they went theirs. On his side he formed a new group of five musicians. He called them "Fleetwood Mac", and sent them on a tour of the United States. The original group brought an action against the manager for passing off. On 12th July 1974 Mr. Justice Goff granted an interim injunction until trial.

5

The original group, having broken off from their old manager, worked under new management. Two of them were talented composers. They wrote and composed new songs and put them to music. They made arrangements with well-known firms in the United States to record them and distribute the records. These firms have made a record album called "Heroes are Hard to Find". It contained eleven songs. It has been released in the United States and has sold 150,000 copies. Now the firms in the United States, through their English subsidiaries wish to release this record album for sale in England.It Is very important, they say, that this should he done quickly, within two weeks - else it will lose its impact.

6

The old manager, Clifford Davis, now seeks to prevent this record album being sold in England. He claims that his company is entitled to the copyright in this album "Heroes are Hard to Find", even though it was produced by the group after he ceased to have anything to do with them. He has brought this action against the makers and distributors, through their English subsidiaries. He seeks to stop the sale and distribution in England. The Judge in chambers granted an interim injunction. The defendants sought to have it discharged. The Judge refused to discharge it. The defendants appeal to this Court.

7

The words and music of the eleven songs were composed by two talented members of the group. One of them is Christine McVie. She joined the group in July 1970. The other was Mr. Robert McVie. He joined the group in January 1971. They are both of full age and are experienced performers and composers But several months after they had joined the group, the old manager got each of them to sign a publishing agreement with him. Mrs. McVie signed hers on 1st January 1971, Mr, Welch signed his on 21st December 1972. Under each publishing agreement the manager (that is the old manager) through his self-same company) described himself as "The Publisher". Under each agreement, the composer was to write and compose songs. The publisher was to be at liberty to publish them. If he did so, the composer was to get 10% of the retail price of the sheet music and 50% of the royalties on the records. So far so good. It was fair enough. But when each of the publishing agreements is examined, it is found to contain some amazing provisions. It gives the publisher, alias the manager, a stranglehold over each of the composers. It does it by means of the copyright. In everywork whioh the composer produces over a period of 10 years, the copyrightis vested in the publisher. I will not read the agreements In full. I will summarise the provisions,

8

(1) Each composer bound himself to the publisher for five years, but the publisher could extend the term at his option for another five years, making It ten years in all.

9

(2) The composer for the whole of those ten years was tied hand and foot to the publisher. Whenever he composed a work he was bound to submit it to the publisher, who at once became entitled to the copyright in it. The composer assigned to the publisher the copyright in every one of his works. Not only the English copyright but the copyright throughout the world. Each was expected to be very productive. In the case of Mrs. Mcvie, she promised to deliver to the publisher at least one complete musical composition a month.

10

(3) The publisher was not bound to publish any of the works. At any rate, he did. not give any positive undertaking to do so. All he did was to promise Mrs. Mcvie that he would use his best endeavours to launch her works to the fullest extent. There was no such promise to Mr. Welch; but it may perhaps be implied.

11

(4) The publisher had the right for six months to reject any work without payment. If he did not reject it, he was held to have retained it. But even when he retained it, he was not under any positive obligation to exploit it or to do anything with it. If he thought it was not good enough for him to publish, he could put it in a drawer and forget about it. or he could burn it. He did not have to pay anything for it, except that he had to pay Mrs. McVie the sum of 1/- and to pay Mr. Welch a sum left blank in the form. No doubt It was also intended to be 1/-.

12

(5) The manager had the right to assign the copyright of the works to any third party. He could assign it to anyone he ohoseno matter that the assignee knew nothing about the trade or about publishing and had not the means to publish it. The composer has no say in it at all.

13

Now the question arises: Is the Court bound to enforce this assignment of copyright at the suit of the...

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