Experience Hendrix LLC v PPX Enterprises Inc.
| Jurisdiction | England & Wales |
| Judge | Mr Justice BUCKLEY |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWHC 1353 (QB) |
| Docket Number | Case No: 01/TLQ/1370 |
| Court | Queen's Bench Division |
| Date | 05 July 2002 |
[2002] EWHC 1353 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Honourable Mr Justice Buckley
Case No: 01/TLQ/1370
Philip Jones (instructed by Eversheds) for the Claimant
Andrew Green (instructed by Harbottle & Lewis) for the Defendants
Hearing dates : 7th, 8th, 9th, 10th, 13th and 15th May 2002
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr. Justice Buckley
Mr Justice BUCKLEY:
Background
Jimi Hendrix was born in Seattle, USA on 27th November 1942. By the time he died in London in 1970, at the age of 27, he had achieved worldwide fame as a rock instrumentalist, vocalist and composer of popular songs.
He was persuaded to come to London in 1966 where he formed a group known as "The Jimi Hendrix Experience". The group's debut single "Hey Joe" was released in December that year. Further singles were recorded and released in March and April 1967. In June the group's first album "Are You Experienced" was released. It was these recordings that first took Jimi Hendrix to international stardom.
Prior to his arrival in London he had played as a sideman to Curtis Knight, a vocalist. In particular, he played guitar with the group "Curtis Knight and the Squires". The first Defendant ("PPX") had recorded numerous tracks of such performances both in its Studio 76 and at live performances. Curtis Knight and Jimi Hendrix signed recording contracts with PPX. Jimi Hendrix's contract was dated 15th October 1965. By that contract he agreed to produce, play and or sing exclusively for PPX for three years in return for a 1% royalty on the retail selling price of records sold. The agreement also provided that PPX should have exclusive rights to all master recordings produced.
When the second Defendant, Mr. Chalpin, the owner and president of PPX, learned of the successful releases of "The Jimi Hendrix Experience" records he instituted proceedings in New York and in 1967 in London, based on the 1965 agreement. Notwithstanding these proceedings and to Mr. Chalpin's surprise, Jimi Hendrix turned up at his recording studio in July 1967 and played guitar during further recording sessions with Curtis Knight.
The London Proceedings
The London proceedings were eventually settled in 1973. After many days of evidence the parties finally reached agreement on 7th March 1973. The terms of their agreement which, were embodied in recitals to the Order that the court was asked to make, were read to the Judge. He was handed a copy of the draft order to which was attached a Schedule A. The Order was drawn up and sealed by the court on 22nd March 1973 and Schedule A was attached. There were various parties to the London proceedings including Alan Leighton Davis, Attorney for the Administrator of the Estate of the late Jimi Hendrix.
The present Claimant, Experience Hendrix LLC ("EHL"), is a company incorporated in the State of Washington, USA, and is owned and controlled by the family of the late Jimi Hendrix. It is the successor in title to the estate. It owns and administers most of the rights relating to Jimi Hendrix's music, recordings, songs and performances apart from certain recordings made by him as sideman with other groups, including those already mentioned with Curtis Knight.
It is the terms of settlement of the London proceedings ("the 1973 Agreement"), in particular Schedule A, which gives rise to the present proceedings. I would add, without further detail, that there have been other legal actions arising out of disputes concerning the Jimi Hendrix legacy and involving the parties behind these proceedings. Because the terms of the 1973 Agreement are fundamental to these proceedings, I set them out:
"AND UPON
1. The Plaintiff and Edward Chalpin undertaking through their Counsel to the Court that no action upon the Contract between Plaintiff and the original 1st Defendant dated 15th October 1965 shall be brought against anyone anywhere EXCEPT
(a) Actions against any licensee of the Plaintiff relating to the masters specified in Schedule A hereto in respect of any breach or threatened breach of the terms of the relevant licence (a list of the licences now subsisting in respect of such masters to be supplied by Mr. Chalpin to the 1st Defendant within 10 days hereof)
OR
(b) ……….
2……….
3. (a) Defendants agree that the Plaintiff is entitled to the masters of the titles listed in Schedule A hereto being masters now in the possession of the Plaintiff and all rights of all kinds in respect of those masters and the copyright therein and the performances recorded thereon PROVIDED THAT in respect of any new licences or any extension or variation of any existing licence relating thereto
(i) The estate of Jimi Hendrix shall be entitled to a royalty of 2% of the retail selling price of records sold based upon the same formula as applied to the royalty rate payable to the Plaintiff but
(ii) Should the Plaintiff receive thereunder a royalty of 6% or less then the estate shall be paid only 1% and
(iii) There shall be an account of all such royalties and payment of what is due on the last day of March, June, September and December in each year.
(b) Defendants further agree that the Plaintiff is entitled to honour, carry out and comply with any existing contract or licence relating to titles not listed in Schedule A full particulars of which and of the contracts and licences relating thereto shall be supplied by Mr. Chalpin to the first Defendant within 10 days hereof
PROVIDED
(a) No extension or renewal of such contracts or licences shall be granted without the consent of the first Defendant
(b) No further or other records, tapes or cassettes or other form of recording shall be issued or released except those specifically covered by such contracts or licences.
4. The Plaintiff and Edward Chalpin and Studio 76 Inc. will deliver up to the first Defendant all masters of recordings (not hereinbefore referred to) on which Hendrix performed in any capacity whatsoever now in the possession of any of them or to which any of them is entitled and same shall thereupon be destroyed."
After those and other recitals the Order itself was brief and essentially provided that there should be no Order for Costs but that the Plaintiff should pay the Defendants £50,000 on or before 6th April 1973.
Although not all the above was originally accepted by Mr. Chalpin in his witness statement, I understood it to be agreed at the trial. For the avoidance of doubt, I find it as fact.
The Present Proceedings
It is now agreed that at various times since 1973 and contrary to the terms of the 1973 Agreement, PPX has licensed various masters which do not appear in Schedule A; further, that it did not deliver up all the masters called for by paragraph 4. In particular, PPX granted a licence in 1995 to a German company CBH Records and in 1999 a licence to Nippon Crown. The former was terminated by PPX in 1996.
EHL presently claims, in summary:
i. An injunction to restrain both Defendants from exploiting masters other than those in Schedule A;
ii. Delivery up of the Clause 4 masters;
iii. Damages and or an account of royalties.
The Defendants submit that Schedule A was varied and as varied permitted the exploitation that has taken place; alternatively EHL has waived any rights it had; has by conduct granted an implied licence for the exploitation or is now estopped from asserting its rights. In any event, EHL should now be refused equitable relief because of acquiescence or laches. PPX counter-claims for a declaration that it is entitled to exploit certain masters in addition to Schedule A.
Variation of Schedule A
Mr. Green, Counsel on behalf of the Defendants, submitted that between 10th March and 2nd April 1973 the parties had agreed that PPX was entitled to continue to exploit 50 masters identified in the list attached to a letter dated 19th March 1973 from PPX to Mr. Branton in California. Mr. Branton was then acting as attorney to the estate. He submitted that the 19th March letter constituted the offer to vary the 1973 Agreement by extending Schedule A and an acceptance was to be found in three further letters:
i. Mr. Howard (another attorney then acting for the estate) to Mr. Chalpin dated 23rd March 1973.
ii. Goodman Derrick (solicitors then acting for the estate) to Rowe and Maw (solicitors then acting for Mr. Chalpin) dated 2nd April 1973, and
iii. Mr. Binks, a partner in Harold Stern and Co. (solicitors also advising Mr. Chalpin) to Rowe and Maw dated 2nd April 1973.
In support of the above Mr. Green further submitted that since the lists provided with the 19th March letter did not correspond with those called for by the 1973 Agreement it must constitute an offer to vary and that it was supported by other contemporaneous messages between Mr. Chalpin and Mr. Binks which clearly showed that Mr. Chalpin's intention was to extend Schedule A. He also submitted that the three letters mentioned spoke for themselves and evidenced an acceptance. He also prayed in aid Mr. Binks' oral evidence that had he not secured agreement to Mr. Chalpin's instructions at a so-called completion meeting on 29th March 1973, he would not have completed but "come running back to get further instructions, but I did not".
I regard those submissions as untenable. Even if PPX's letter dated 19th March could fairly be construed as an offer to vary the Agreement, which without more, I doubt, I cannot construe the other three letters to...
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