Gloucester Place Music Ltd v Simon Le Bon and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Arnold |
| Judgment Date | 02 December 2016 |
| Neutral Citation | [2016] EWHC 3091 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2015-004970 |
| Date | 02 December 2016 |
[2016] EWHC 3091 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London EC4A 1NL
Mr Justice Arnold
Case No: HC-2015-004970
Ian Mill QC and Andrew Scott (instructed by Lee & Thompson) for the Claimant
Michael Bloch QC (instructed by Russells) for the First to Fourth and Sixth to Eleventh Defendants
The Fifth and Twelfth Defendants did not appear and were not represented, but agreed to be bound by the result
Hearing dates: 14–15 November 2016
Judgment Approved
Introduction
In these proceedings the Claimant seeks declarations that the Defendants, who comprise the current or former members of the pop group Duran Duran and their service companies, have acted in breach of various music publishing and associated agreements ("the Agreements") by serving a series of notices under section 203 of the United States Copyright Act 1976 ("the Notices") terminating assignments to the Claimant of the US copyrights in 37 Duran Duran songs, or will be in breach if the Notices are not withdrawn. The Defendants deny that the Claimant is entitled to such declarations. Whether the Defendants have breached, or will breach, the Agreements by service, or non-withdrawal, of the Notices depends on the correct interpretation of those Agreements, which are governed by English law and confer exclusive jurisdiction on the courts of England.
Background
The contractual history is in summary as follows. On 28 July 1980 each of the five members of Duran Duran (a "Group Member") entered into a music publishing agreement (a "Group Member Music Publishing Agreement") with the Claimant (then called Tritec Music Ltd) which contained a worldwide assignment of copyright in works written or composed by the Group Member during the term of the Agreement in return for the payment of advances and royalties. The initial term of these Agreements was one year, with provision for extensions through a series of one year "option periods". The Claimant extended each Group Member Music Publishing Agreement through two "option periods" until 1 June 1983, when these Agreements were terminated by and on the terms of a series of agreements in the form of letters ("the Termination Letter Agreements"). They were so terminated so as to enable each Group Member to provide songwriting and associated services in respect of future compositions through UK service companies and rest of the world service companies. Accordingly, each Group Member's service companies entered into music publishing agreements (the "UK Service Company Publishing Agreements" and the "Rest of World Service Company Publishing Agreements") on 1 June 1983. Each Group Member also entered into an agreement with the Claimant in the form of a letter (a "Group Member Letter Agreement") at the same time, which was provided as an inducement to the Claimant to enter into the Service Company Publishing Agreements. On 1 July 1993 agreements were entered into between the Claimant and certain of the Group Members and their Service Companies for the sale, transfer, and assignment of part of the Claimant's interest in the compositions.
During the term of the Music Publishing Agreements, the Group Members between them wrote the music and/or lyrics of 37 songs ("the Compositions"). These include many of Duran Duran's best-known songs, including "Girls on Film", "Rio", "Hungry Like The Wolf" and "Is There Something I Should Know?". Some of the Compositions were written pursuant to the Group Member Music Publishing Agreements and some pursuant to the Service Company Music Publishing Agreements, but nothing turns on this.
The Notices were served by letters from the Defendants' representatives dated 11 March 2014 and 24 June 2014. The Notices specify various effective dates of termination for the purposes of section 203(a)(4) of the US Copyright Act in respect of the Compositions. For some of the Compositions, these dates have now passed; for others, the specified effective dates fall between now and 2020.
The Agreements
It is common ground that, so far as is relevant to the present dispute, the Music Publishing Agreements are in essentially identical terms. By way of example, the parties referred me to a set of the Agreements between the Claimant and Nigel John Taylor (known as John Taylor) and his service companies. It is also common ground that little turns on the differences between the Group Member Music Publishing Agreements and the Service Company Music Publishing Agreements. Accordingly, I can concentrate on the Group Member Music Publishing Agreement between the Claimant and John Taylor and on the Group Member Letter Agreement between the Claimant and John Taylor.
The relevant clauses of the Group Member Music Publishing Agreement are in the following terms (with John Taylor being referred to as "the Writer" and the Claimant being referred to as "the Publishers"). Clause 3(a) provides, so far as relevant:
"The Writer as beneficial owner (and by way of assignment of future copyright and rights where appropriate) hereby assigns to the Publishers all the copyrights and all other rights whatsoever and howsoever now or hereafter known (subject as hereinafter provided) in all musical compositions and/or lyrics and/or original arrangements of musical works (whether or not such musical works so arranged are in the public domain) which may prior to the date hereof have been written composed or created in whole or in part by the Writer and not been assigned by the Writer to any third party and which may during the term hereof be written composed or created in whole or in part by the Writer including the titles words and music thereof (all of such musical compositions lyrics and arrangements being hereinafter together called 'the said works') throughout the world and the right to renew and extend such copyrights and other rights and the ownership of such renewed and extended copyrights and other rights as may now or hereafter be conferred by the laws of any territory so that the entire copyrights and all other rights in the said works shall be vested in the Publishers absolutely free from the adverse claims of any third party…"
Clause 4 provides:
"Without prejudice to the generality of the grant of rights hereinabove contained the Publishers shall have the right to make and publish and to authorise others to make and publish:-
(a) new adaptions, orchestrations, dramatisations and arrangements of the said works
(b) additions and alterations to and deletions from the said works subject to prior consultation with the Artist by the Writer
(c) new lyrics or lyric translation in any language to the music of the said works and new music to the lyrics of the said works
all of such rights in such modifications and new matter to be exercised in such manner as the Publishers shall think fit so that the entire copyrights and all other rights whatsoever and howsoever throughout the world in such modifications and new matter shall be vested in the Publishers absolutely for the full term thereof and all renewals and extensions thereof subject always to payment of the Writer's share of all fees and royalties as provided for herein".
Clause 6 provides, so far as relevant:
"The Writer hereby warrants and agrees:-
…
(b) that he is or will be the sole owner (subject to the terms of this Agreement and subject to the existence of any collaborator referred to in Clause 5 thereof) of the copyright and of all other rights of the nature referred to in Clause 3(a) hereof in the said works and that he has not previously granted transferred to [sic] assigned and will not grant transfer or assign any interest in the copyright or such other rights in the said works or any of them or any part thereof to any other person firm or corporation
…"
Clause 12 provides:
"The Writer shall at the Publishers expense take such steps and proceedings as the Publishers may reasonably require to renew and extend any and all copyrights and other rights which may now or may hereafter exist in the said works and after such renewal and extension shall transfer and assign to the Publishers for their own use and benefit the rights herein granted for such renewed or extended term so that each such transfer or assignment shall be in the form annexed hereto marked 'Exhibit A' subject to the payment of royalties provided for herein In the event that the Writer shall after written request fail to do so the Writer hereby appoints the Publishers to be his Attorney and to take all and any such steps and proceedings in the name and on behalf of the Writer but at the Publishers expense and execute and deliver to the Publishers in the name of the Writer any such transfer and/or assignment".
Clause 18 provides, so far as relevant:
"This Agreement shall be governed by and construed under the laws of England whose courts shall have exclusive jurisdiction …"
The Group Member Letter Agreement provides, so far as relevant:
"I hereby confirm warrant and guarantee to you that:
…
(b) The Companies are in a position to enter into the Publishing Agreements and to assume all the obligations and to give to you all the warranties and undertakings contained therein and all rights in the said works (as defined therein) and are the absolute owners of all copyright and any other rights in the said works throughout the world for the full period of copyright and all renewals and extensions thereof whether now or hereafter possible.
…
(d) I will do all that is required of me...
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