Experience Hendrix LLC v Purple Haze Records Ltd and Another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR. JUSTICE HART,Mr. Justice Hart |
| Judgment Date | 24 February 2005 |
| Neutral Citation | [2005] EWHC 249 (Ch) |
| Docket Number | Case No: HC04C02405 |
| Court | Chancery Division |
| Date | 24 February 2005 |
[2005] EWHC 249 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Hart
Case No: HC04C02405
Mr Richard Arnold QC (instructed by Messrs. Eversheds) for the Claimant.
Mr Richard Miller QC and Miss Denise McFarland (instructed by Mr Clive Sutton) for the Defendants.
Hearing dates: 27, 28 th January 2005
Approved Judgment
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 Hart:
This is the claimant's application for summary judgment under CPR 24.2 on its claim for infringement of performer's rights in performances given by the late Jimi Hendrix at the Konserthuset Stockholm Sweden on 9 th January 1969 ("the Stockholm Performances"). Although there is no formal admission by the defendants on the pleadings that the Stockholm Performances took place, the proposition that the claimant will be unable to prove that they did is fanciful. They took the form of performances given in two sets by Jimi Hendrix performing together with Mitch Mitchell and Noel Redding as "The Jimi Hendrix Experience". A sound recording and/or film and sound recording of the Stockholm Performances was made by a Swedish broadcasting organisation.
At the time the only protection afforded by English law to performers against the unauthorised exploitation of their performances was achieved by the criminal sanctions provided for by the Performers' Protection Acts 1958–1963. Subject to a qualification which it is unnecessary to elaborate (see the decision of the Court of Appeal in Rickless v. United Artists Corp [1988] QB 40 and the illuminating discussion of that decision in Arnold, Performers' Rights, 3 rd Edition at paras 1.64–1.84) a performer had no private law right or remedy in respect of such exploitation. Such a right (and accompanying remedy) was first expressly provided for by the provisions contained in Part II of the Copyright Designs and Patents Act 1988 which had a commencement date of 1 st August 1989.
On 18 th September 1970 Jimi Hendrix died intestate in London. The defence puts the claimant to strict proof of those facts. However, both the date of death and the fact of intestacy are in reality incontrovertible as matters of record.
By order of the Surrogate's Court of the County of New York, New York State made on 19 February 1971, Mr Kenneth D Hagood ("the New York Administrator"), was appointed as administrator de bonis non of the goods, chattels and credits ("the Estate") of Jimi Hendrix. On 23 January 1973 Mr Alan Leighton-Davis ("the English Administrator") was appointed as administrator of the estate of Jimi Hendrix pursuant to letters of administration granted by the High Court of Justice, Family Division, Principal Probate Registry by virtue of a power of attorney granted by the New York Administrator for this purpose. By an instrument made in New York County, New York State, USA and dated 30 March 1977 the New York Administrator distributed, transferred and set over to Mr James A. Hendrix ("Mr Hendrix"), father of Jimi Hendrix, all right, title and interest in the assets of the Estate. On 13 November 2000 with the consent and at the direction of the New York Administrator and Mr Hendrix, the English Administrator executed a Deed of Assignment and Assent which transferred to the Claimant, inter alia "all… the property comprised in [Jimi Hendrix's] estate now vested in or belonging to or under the control of [the English Administrator] as administrator thereof".
As already stated, the provisions of Part II of the 1988 Act came into effect on 1 st August 1989. These conferred rights on a performer by requiring his consent to the exploitation of his performances (as more particularly set out in sections 181–184) and also on a person having recording rights in relation to recordings made without his consent or that of the performer (as set out in sections 185–188). In relation to the rights conferred on performers the following points should be noted:
i) The rights conferred are conferred retrospectively, s. 180(3) providing that:
"The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights."
ii) The rights only subsist in "qualifying performances", an expression defined in s. 181 by reference to the provisions of s. 206.
iii) The rights were neither assignable nor transmissible save as provided in s. 192(2) to (5). Section 192(2) provided that:
"On the death of a person entitled to performer's rights:
(a) the rights pass to such person as he may by testamentary disposition specifically direct, and
(b) if or to the extent that there is no such direction, the rights are exercisable by his personal representatives."
iv) The content of the performer's rights was defined by reference to the acts which infringe. Three categories of infringing acts were specified by, respectively, s. 182, 183 and 184. Section 182 dealt with infringement by the direct or indirect recording of a qualifying performance or the live broadcast of a qualifying performance without the consent of the performer. Section 183 dealt with the use of a recording by a person who knew or had reason to believe that the recording was made without such consent. Section 184 dealt with business dealings in "illicit recordings" where the dealer knew or had reason to believe that the recording was an illicit recording.
v) The rights are quite separate from copyright, section 180(4) providing that:
"The rights conferred by this Part are independent of:
(a) any copyright in, or moral rights relating to, any work performed or any film or sound recording of, or broadcast or cable programme including, the performance, and
(b) any other right or obligation arising otherwise then under this Part."
These provisions were substantially amended and expanded by the Copyright and Related Rights Regulations 1996 (SI 1996/2967) ("the 1996 Regulations") which were made in order to implement, inter alia, Council Directive No. 92/100/EEC of 19 th November 1992. The commencement date of the 1996 Regulations was 1 st December 1996. A new section 182 was substituted in similar terms to the old section 182 but restricting its ambit to direct recording of a qualifying performance, and direct recording of a broadcast. A new section 182A provided that a performer's rights were infringed by a person who without his consent made a copy of a recording of a qualifying performance, and labelled the resulting right "to authorise or prohibit the making of such copies" a "reproduction right". A new section 182B provided that a performer's rights were infringed by a person issuing to the public copies of a recording of a qualifying performance without the performer's consent and labelled the resulting right as a "distribution right". A new section 182C (with which this case is not concerned) conferred on the performer a "rental right" and a "lending right"; and a new section 182D made provision for a performer to be entitled to equitable remuneration from the owner of the copyright in a sound recording of a qualifying performance when it was played in public or broadcast.
A new section 191A declared the rights granted by section 182A, 182B and 182C to be "property rights", and a new section 191B provided that a performer's property rights were transmissible "by assignment, by testamentary disposition or by operation of law, as personal or moveable property". Section 191(B)(3) provided that an assignment of property rights should not be effective unless in writing signed by or on behalf of the assignor.
The 1996 Regulations also contained the following provisions material to the arguments in this case:
"26.(1) Subject to anything in regulations 28 to 36 (special transitional provisions and savings), these regulations apply to copyright works made, and to performances given, before or after commencement.
(2) No act done before commencement shall be regarded as an infringement of any new right, or as giving rise to any right to remuneration arising by virtue of these Regulations.
Saving for certain existing agreements
27.(1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before 19 th November 1992.
(2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right.
Special provisions
New rights: exercise of rights in relation to performances
30.(1) Any new right conferred by these Regulations in relation to a qualifying performance is exercisable as from commencement by the performer or (if he has died) by the person who immediately before commencement was entitled by virtue of section 192(2) to exercise the rights conferred on the performer by Part II in relation to that performance.
(2) Any remuneration or damages received by a person's personal representatives by virtue of a right conferred on them by paragraph (1) shall devolve as part of that person's estate as if the right had subsisted and been vested in him immediately before his death.
New rights: effect of pre-commencement authorisation of copying
31. Where before commencement:
(a) the owner or prospective owner of copyright in a literary, dramatic, musical or artistic work has authorised a person to make a copy of the work, or
(b) the owner or prospective owner of performers' rights in a performance has authorised a person to make a copy of...
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