Peer International Corporation v Termidor Music Publishers Ltd

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Lindsay
Judgment Date16 Nov 2006
Neutral Citation[2006] EWHC 2883 (Ch)
Docket NumberCase No: HC0003960

[2006] EWHC 2883 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Lindsay

Case No: HC0003960

Between:
(1) Peer International Corporation (a company incorporated pursuant to the laws of the State of New Jersey, United States of America)
(2) Southern Music Publishing Co Inc (a company incorporated pursuant) to the laws of the State of New York, United States of America
(3) Peermusic (UK) Limited
Claimants
and
(1) Termidor Music Publishers Limited
(2) Termidor Musikverlag Gmbh & Co KG (a company incorporated pursuant to the laws of Germany)
Defendants/Part 20 Claimants

and

Editora Musical de Cuba
Part 20 Defendant

Pushpinder Saini and (as to succession) Simon Taube QC (instructed by Sheridans) for the Claimants

Peter Prescott QC, James Mellor and (as to succession) Michael O'Sullivan (instructed by Teacher Stern Selby) for the Part 20 Defendant

Hearing dates: 2005 May: 10, 11, 12, 13, 16, 17, 18, 25 2005 September: 26, 27 and 28 (in Cuba)

2005

October: 14

2006

January: 26

2006

March: 6, 7, 8, 9, 10, 13, 16, 17, 20, 21, 24

2006

May: 2, 22, 23, 24, 25

2006

October: 30

Approved Judgment

Schedule

Mr Justice Lindsay

A. Introduction

Song No.

Title of Work

Composer

Date of Composer's death

1911 Act reversion begins

Date of alleged Original Agreement

Law applicable to the original agreement * = express

Date of the EGREM intervention

Date of the EMC intervention

Date of alleged Further Dealings

(1)

Aurora

Manuel Corona

9.1.50

1975

27.2.30

* Mex

14.6.2000

No claim

(2)

Cuidadito Compay Gallo

Antonio Fernandez Ortiz (Nico Saquito)

4.8.82

2007

10.12.36

* Cub

3.5.60

14.6.2000

25.8.98 and addendum dated 1.7.02

(3)

Compay Gato (aka Adios Compay Gato)

Antonio Fernandez Ortiz (Nico Saquito) and M. Sanchez

4.8.82 5.6.91

2007

16.10.45

Cub

3.5.60

14.6.2000

25.8.98 and addendum dated 1.9.02 and deed of 1.6.04 for Sanchez

(4)

Al Vaiven De Mi Carreta

Anthonio Fernandez Ortiz (Nico Saquito)

4.8.82

2007

20.6.40

Cub

14.6.2000

25.8.98 and addendum dated 1.7.02

(5)

Diablo Tun Tun, El

Bienvenido Gutierrez

5.12.66

1991

11.2.33 and 25.7.58 (in respect of the reversion)

Cub

15.2.62

(6)

Damelo

Ignacio Pineiro

12.3.69

1994

10.10.30

Cub

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(7)

Buey Viejo

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(8)

Echale Salsita (aka Echales Salsito)

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(9)

Esas So Non Cubanas

Ignacio Pineiro

12.3.69

1994

28.2.45

Cub

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(10)

Guanajo Relleno, El

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(11)

Mentira Salome (aka Mentiras Salome)

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(12)

Rumberos De La Habana, Los

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(13)

Borinquen

Ignacio Pineiro

12.3.69

1994

12.8.33

* N.Y

13.1.64

22.9.2000

20.8.99 and 12.4.01 and addendum of 15.4.02

(14)

Romance Guajiro

Celia Romero

12.10.67

1992

28.2.42

Cub

26.4.64

23.7.99; 19.8.02 and addendum of 19.8.02

1

This action concerns the English copyright in thirteen musical compositions (for brevity I shall call them “songs”) written in a Cuban style. The songs were written by Cuban nationals, the first in time in 1930, the last in 1945. The titles of the songs and the names of their respective seven composers (one work having joint composers) are set out in the Schedule annexed to this judgment. I will usually refer to a song by the number I have given it in the Schedule's left hand margin.

2

The Mechanical Copyright Protection Society Ltd (“MCPS”), which collects and distributes royalties in respect of works protected by English copyright, finding that there were disputes as to entitlement to that copyright, registered the songs as subject to dual claims; Peermusic (UK) Ltd, a wholly owned U.K. subsidiary of Peer International Corporation (a company incorporated under the laws of New Jersey, USA) claimed to own the copyright but so also did either or both of Termidor Music Publishers Ltd (incorporated in England) and Termidor Musikverlag Gmbh & Co KG (incorporated in Germany). For most purposes it is convenient to lump those companies together as either the Peer companies (“Peer”) or the Termidor ones (“Termidor”).

3

On 25 th August 2000 Peer began proceedings against Termidor in respect of the thirteen songs and three others; it sought a declaration that it was the copyright owner of the songs. It soon became apparent from Termidor's defence that such title as Termidor claimed had been acquired from Editora Musical de Cuba (“EMC”), an emanation – I deliberately use a loose word — of the Cuban state operating, as its name suggests, in connection with Cuban music. On 5 th March 2001 Termidor applied for EMC to be joined as a Part 20 Defendant and on 15 th March 2001, by consent, permission for that was granted and directions (later slightly varied) were given which included that the Part 20 proceedings should be heard at the same time as the action. The directions included reference to there being expert evidence as to Cuban law.

4

Once Cuban law had come into play it was thought fit to have some issues raised as preliminary issues of law and on 28 th October 2002 Park J's Order identified three main questions and gave directions for their resolution. The hearing of those issues came before Neuberger J. on 12 th December 2002. His Order included three rulings; firstly, that the documents relied on by Peer as assignments to it, or confirmations of assignments to it, of copyright were “initially valid under the relevant applicable law (without pre-judging what such law is)”; secondly, that a Cuban law called Law 860, which I shall need to return to, was ineffective to deprive Peer of any English copyright otherwise vested in it and, thirdly, that some documents called “Composer Confirmation of Rights”, which Peer said it had obtained in Cuba from heirs of the composers of the songs, were ineffective on their own but, when joined with further documents called Addenda, were effective in point of their language to assign to Peer the reversionary copyrights arising under the proviso to section 5 (2) of the Copyright Act 1911.

5

That provision, whilst in force, as it was until 1 st June 1957, had the effect that although a composer could in his lifetime assign copyright for up to 25 years after his death, the period beyond that until the expiry of the copyright, a period I shall call “the 1911 Act reversion”, could be disposed of by the composer only by his Will. Disposition by such Will apart, the 1911 Act reversion was to devolve automatically (so the Act provides) “on his legal personal representatives as part of his estate”.

6

Neuberger J. granted permission to appeal and there was an appeal and cross-appeal which were determined on 4 th August 2003 when Neuberger J's order was affirmed by the Court of Appeal. Permission to appeal to the House of Lords was refused. EMC's case had then, of course, to be considered or reconsidered in the light of the Court of Appeal's ruling and on 7 th March 2004 EMC produced its Part 20 Defendant's Statement of Case which raised wide-ranging attacks on Peer's claims to the English copyrights. It has since been amended. There is no counterclaim by EMC. Termidor has taken no further part in the proceedings; the hard fought contest has been solely between Peer and EMC as the trial has been that of issues as between Peer and EMC as directed by Master Bragge on 5 th July 2004.

7

Neither side can be congratulated on the way it anticipated and provided for important legal issues and there have been many additional statements of case and amendments. The last amendment to EMC's pleadings, for example, was even after all of what I had taken to be the final speeches had finished on 25 th May 2006. The last written evidence was not received until months later. Oral evidence was heard not only here but, over three days, in Cuba. It has been an unfortunate feature that expert evidence on Cuban law was heard only relatively late on in the action; crucial issues might have been seen for what they were much earlier if it had been brought forward. The hearing before me began on 10 th May 2005 and the last hearing day was well over a year later, on 30 th October 2006.

8

To turn from a legal or procedural introduction to an historical one, Cuba has enjoyed several indigenous styles of popular music and there have been recordings made of its music going back to the late twenties and early thirties of the last century when recordings available at prices which the general public could afford first appeared on the market. Sales of sheet music were an alternative and cheaper way in which the public could encounter the Cuban sound. The lively and expressive music had, of course, a warm welcome in Cuba but also a following in other Hispanic countries and in the United States. A pioneer of North American interest in the music was the late Mr Ralph Peer, a United States music publisher who visited Cuba, who met composers, who took assignments of copyright and who built up an extensive list of popular Cuban works, including the thirteen songs in issue, to the copyrights in respect of which, by way of what I will call “original agreements”, made directly...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT