Jodie Aysha Henderson v All Around the World Recordings Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Hacon,Judge Hacon |
| Judgment Date | 03 October 2014 |
| Neutral Citation | [2014] EWHC 3087 (IPEC) |
| Docket Number | Case No: CC12P00078 |
| Court | Intellectual Property Enterprise Court |
| Date | 03 October 2014 |
[2014] EWHC 3087 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
His Honour Judge Hacon
Case No: CC12P00078
Chris Pearson (instructed by Keystone Law) for the Claimant
Gwilym Harbottle (instructed by Anthony Jayes LLP) for the Defendant
Hearing date: 10 July 2014
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.
Introduction
This is an inquiry as to damages heard pursuant to the Order of HH Judge Birss QC dated 18th March 2013, following his judgment of 13 February 2013.
The background facts, which are also relevant to this inquiry, were set out in the judgment:
"[1] The claimant, Miss Henderson, is a singer, songwriter and musician. Her stage name is Jodie Aysha. In 2004, when she was about 14 years old Miss Henderson composed the lyrics for a song called Heartbroken. There is a dispute about the melody to which I will return.
[2] In 2005 she met with Tafazwa Tawonezvi. He is about the same age as Miss Henderson and they had been working on musical projects in Yorkshire since about 2003. At that time he was concentrating on styles of music known as Grime, Hip Hop and R&B. Mr Tawonezvi is known universally as T2. Mr Tawonezvi had a computer-based recording system set up in a bedroom in the flat where he was living at the time. The system was used to play some slow R&B beats. Miss Henderson sang Heartbroken into Mr Tawonezvi's system and a recording was made. There is a dispute about exactly what happened on that occasion and on what terms, but there is no doubt a recording of Miss Henderson's vocal performance was made.
[3] In mid 2005 Mr Tawonezvi's musical interest focussed on a new sound genre now called "Bassline" but then known as "Niche", stemming from a nightclub of that name in Sheffield. He started making Bassline tracks using his own equipment and by early 2006 Mr Tawonezvi had people following his music in the whole of Yorkshire. His reputation at clubs in 2006 began to grow and by the end of 2006 he was becoming a successful DJ doing 3 to 5 gigs a week.
[4] In January 2007 Mr Tawonezvi returned to the recording of Miss Henderson's vocal performance which he had retained. Using this recording he produced a new version of Heartbroken. The new version consists essentially of Miss Henderson's vocal performance mixed above a new "Bassline" bass-line created (or at least mixed) by Mr Tawonezvi. Mr Tawonezvi altered the pitch of Miss Henderson's voice electronically and also "chopped up" her vocals in certain ways. In addition the chorus of Heartbroken as it appears on the track more than once is the same segment of Miss Henderson's vocal, repeated.
[5] Mr Tawonezvi sent a copy of the track to Sean Scott, another DJ, for him to put on his January mix CD. Mr Tawonezvi released the track as "T2 — Heartbroken".
[6] There is a dispute about when exactly Miss Henderson discovered what Mr Tawonezvi had done. One way or another in early 2007 Miss Henderson knew that Mr Tawonezvi had produced a remix of Heartbroken. At that stage Mr Tawonezvi had started producing and selling "white label" vinyl copies of it. White label releases are on a small scale and are done on a private basis, not under the auspices of a record company. The Heartbroken track was proving to be very popular in the clubs in which Mr Tawonezvi played it.
[7] In February 2007 Miss Henderson and Mr Tawonezvi were communicating on the MySpace social networking site about Heartbroken. There was an issue that the entire track was available for public download on Mr Tawonezvi's Myspace page but Miss Henderson explained to him how to prevent that. They were both trying to build their careers in the music industry. Amongst other things Mr Tawonezvi was using the track as part of his DJ set and Miss Henderson was performing "personal appearances" singing Heartbroken in clubs over a bass-line track provided by Mr Tawonezvi. The relationship between Mr Tawonezvi and Miss Henderson deteriorated rapidly in that period.
[8] By summer 2007 Miss Henderson's elder sister Hayley was acting as her manager. They heard rumours that Mr Tawonezvi had signed Heartbroken to a record company called All Around the World Recordings Ltd, the defendant. All Around the World were and are a successful record company in the dance music scene. They are based in Blackburn. The company releases tracks individually and together with other recordings but also in compilations. The company's brand "Clubland" is a very successful brand of dance music compilation. The key individuals at All Around the World are Cris Nuttall and Matt Cadman.
[9] In fact the position vis à vis All Around the World was as follows.
[ 10] Phil Sagar was a consultant working in the music industry, looking for recordings and artists, particularly in the North of England. He became aware of Heartbroken in early 2007. By summer 2007 he thought all the indicators of success were in place. It was being played by a number of DJs at clubs and was heavily played on BBC Radio 1's 1Xtra station, which specialises in the latest urban music genres. Bassline was an emerging genre and Heartbroken was the biggest and most popular track in the genre. Mr Sagar met Mr Tawonezvi and had a brief discussion with him.
[11] Mr Sagar then approached All Around the World in about June or July 2007. At the time they were introduced to the track, All Around the World were told that the artist (Mr Tawonezvi) had released Heartbroken and it was available on 12" vinyl but had not been signed to a record company. However by the time All Around the World actually approached Mr Tawonezvi, he had signed with another company called 2NV Records Ltd, the Third Party in this case. The individuals at 2NV were Chris Nathaniel and Paul Boadi. From then on 2NV acted as Mr Tawonezvi's manager.
[12] There is a letter in existence from 2NV to Miss Henderson dated 30th August 2007 but which appears in fact to have been sent on 30th July. In the letter Paul Boadi says that he has made efforts to "finalise business matters" relating to Heartbroken and tried to arrange a meeting with Miss Henderson and her manager on 26th July but they did not attend. He says that if he does not hear from Miss Henderson by return he "will have no option but to proceed accordingly".
[13] On 13th August 2007, although they had initially wished to contract directly with Mr Tawonezvi, All Around the World signed a contract with 2NV to release Heartbroken. The contract gives or purports to give All Around the World all the rights necessary to do this. The contract names the artist as Mr Tawonezvi. The advance for Heartbroken paid by All Around the World under this contract was £30,000.
The rights granted by 2NV to All Around the World did not include Miss Henderson's performance rights. Judge Birss continued:
"[14] On 21st August 2NV offered Miss Henderson £1,500 for her vocal performance. She refused.
[15] On 21st September 2007 Miss Henderson signed a conventional music publishing agreement with Sony/ATV Music Publishing (UK) Limited whereby she assigned her copyright in her musical works (including Heartbroken) to Sony. As a result of this agreement Miss Henderson's copyright in Heartbroken was registered with the MCPS and she is or will be entitled to royalties from Heartbroken. There is a dispute between her and Mr Tawonezvi as to their respective shares in the copyright in the track as a musical work. Miss Henderson registered Heartbroken as a musical work as 100% her own. Mr Tawonezvi claims the musical work is 50% his.
[16] At some point in early summer 2007 (it is not clear exactly when but it was probably before Mr Tawonezvi signed with 2NV) Miss Henderson was approached by two video directors with a view to making a video of Heartbroken. Footage was shot with Miss Henderson singing and Mr Tawonezvi acting as the DJ. On 10th September 2NV wrote to Miss Henderson objecting to the video as an unofficial promotion and threatened legal action. This video project did not go further.
[17] Later in the summer a second video, created under the guidance of Mr Tawonezvi and 2NV and funded by All Around the World, was made. The video was shot in two parts, in Leeds and London. As a result of links between these individuals and 2NV, certain famous footballers, Anton Ferdinand and Micah Richards were involved. Miss Henderson participated in the shooting of this video, albeit she says under protest. Miss Henderson's music publishing contract with Sony includes a deemed consent with respect to promotional videos and Sony did and were entitled to give All Around the World consent under the music copyrights to the release of the video. Sony advised Miss Henderson to participate in the video. Miss Henderson says she was told by All Around the World that if she did not participate in the video, 2NV would use footage of other girls miming her lyrics. She felt she had no choice but to appear.
[18] In its form as published, the video focuses primarily on Mr Tawonezvi. Miss Henderson does appear in it for a few short periods. She is singing (in fact miming) the track. Other girls appear in the video as well and they are singing/miming as well although Miss Henderson does so more prominently than them.
[19] There was also a dispute about the sleeve design for the single of Heartbroken to be released. Mr Tawonezvi, 2NV and Miss Henderson could not agree who should take centre stage. Miss Henderson was prepared to accept a sleeve on which both their images appeared but in the end the cover image is a...
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