Performing Right Society Ltd v London Theatre of Varieties Ltd
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Viscount Finlay,Lord Atkinson,Lord Sumner,Lord Phillimore,. |
| Judgment Date | 05 November 1923 |
| Judgment citation (vLex) | [1923] UKHL J1105-2 |
| Date | 05 November 1923 |
| Court | House of Lords |
[1923] UKHL J1105-2
Lord Chancellor.
Viscount Finlay.
Lord Atkinson.
Lord Sumner.
Lord Phillimore.
House of Lords
After hearing Counsel, as well on Monday the 23d, as Tuesday the 24th and Friday the 27th, days of April last, upon the Petition and Appeal of the Performing Right Society, Limited, of Chatham House, 13, George Street, Hanover Square, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 10th of July 1922, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet; as also upon the printed Case of the London Theatre of Varieties, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 10th day of July 1922, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This Appeal from the Court of Appeal in England raises the question whether the Appellant Society, which is entitled in equity to the performing rights in certain musical works, can obtain a perpetual injunction against an infringement of those rights by third parties without joining the legal owners of the copyright as parties to the action.
The Society was registered in the year 1914 under the Companies Acts as a company limited by guarantee, its principal object being "to exercise and enforce on behalf of members of the company, being the composers of any musical works or the authors of any literary or dramatic works, or the owners or publishers of or being otherwise entitled to the benefit of or interested in the copyrights in such works, all rights and remedies under the Copyright Act, 1911, or otherwise in respect of the public performance of their works." It was provided by the Society's Articles of Association that every member who was a publisher should, during the period of his membership, assign to the company his interest, whether present or future, in the right to perform any musical or dramatic work which had been or should be published by him, and that until such assignment and so far as it might not extend every such member invested the company during the period of his membership with the right in his name to institute proceedings against all persons performing such works without authority. The Society was to have the sole right of authorising or forbidding the public performance of any works published or to be published by a member who was a publisher, of granting licences for the public performance of such works, and of collecting fees for the performance of any such works and damages and compensation for unauthorised performances. The net moneys so received, after providing for expenses and a reserve fund, were to be distributed among the proprietors in accordance with rules to be made by the Society. Rules were made accordingly, but it is unnecessary to refer to them in detail. It appears that the Society has nearly 500 members (persons, firms, or companies) and controls the performing rights in over a million musical works. The practice of the Society is to grant general licences to perform all or any of the works under its control to the proprietors of theatres, music halls, and other places of entertainment at an inclusive fee, and it is said that the number of such general licences exceeds 4,000.
In the year 1916, Messrs. Chappell & Co., Ltd., the well-known music publishers, became members of the Society; and by an indenture dated the 26th June, 1916, Chappell & Co., Ltd. (therein called "the assignor") in accordance with the Articles of Association, assigned to the Society (among other things) "the right of performance in all parts of the world of each and every song with the words thereof or musical work (not being a musical play) the right of performance of which then belonged to, or should thereafter be acquired by or be or become vested in, the assignor during the continuance of the assignor's membership of the Society," such rights to be held by the Society for the period of the assignor's membership. In consideration of this assignment the Society covenanted with the assignor to collect and pay to the assignor in respect of the said performing rights, such sums of money out of the monies collected by the Society in respect of the public performances of the works of its members as should represent the share of the assignor therein, in accordance with the rules of the Society for the time being in force. On the 3rd January, 1919, Mr. W. Howard Fisher, the author and composer of a song then called "My Wedding" or "Down Exeter Way," but afterwards known as "The Devonshire Wedding," assigned the copyright and sole right of representation of that song to Chappell & Co., Ltd., in consideration of a cash payment and a royalty. Chappell & Co., Ltd., had until the date of this assignment no interest in the song.
In the year 1918 Messrs. Keith Prowse & Co., Ltd., also well-known music publishers, became members of the Society, and by an indenture dated the 30th July, 1918, which was in like form with the deed executed by Messrs. Chappell & Co., they assigned to the Society the right of performance of the music of every song or musical work (not being a musical play) the right of performance of which belonged to or should thereafter be acquired by or be or become vested in them during the continuance of their membership of the Society, such rights to be held by the Society for the period of their membership. On the 24th January, 1919, Mr. J. Lensen, the author of a song then called "Lullaby" but afterwards "Love in Lilac-time" assigned to Messrs. Keith Prowse & Co., who until then had no interest in the song, his copyright and performing rights in the song.
On the 1st November, 1920, the Respondents, who had previously held a licence from the Society to perform at their places of entertainment any musical works controlled by the Society but who then had no such licence, caused "The Devonshire Wedding" and "Love "in Lilac-time" to be played and sung at one of their music halls. There was some suggestion in the action that the publishers, Messrs. Chappell & Co., and Messrs. Keith Prowse & Co., had authorised the performance of the songs; but this was not clearly established, and if any authority was given it can hardly be doubted that it was intended to be conditional on the consent of the Society being obtained.
After some correspondence, the Society on the 17th November, 1920, commenced this action against the Respondents, claiming an injunction to restrain the Respondents from performing the above-mentioned songs in public without the leave of the Society and damages for infringement of their copyright. The Respondents in their Defence denied the Plaintiffs' title, and further pleaded that the Plaintiffs were a trade union within the meaning of the Trade Union Acts, 1871 to 1913, and that as such their registration and incorporation as a company was void and unlawful. The action was heard by Mr. Justice Branson, who gave judgment for the Plaintiffs for an injunction and damages, holding that the Society was not a trade union, and that, although the equitable owner only of the performing rights, it was entitled to the relief claimed. On appeal the Court of Appeal (Bankes, Younger and Atkin, L.JJ.), while agreeing with the learned Judge in his decision that the Society was not a trade union, held that the Society, being the owner in equity only of the performing rights, could not obtain either damages or a perpetual injunction without adding the legal owners of those rights as parties to the action. The appeal was accordingly allowed and the judgment of Branson, J., set aside; but it was ordered that the Plaintiffs be at liberty within fourteen days of the date of the order, to elect to amend the writ and all subsequent proceedings in the action by adding the legal owners of the copyright of the songs as co-plaintiffs, and in that event should pay the costs thrown away, including the costs of the Appeal. The Appellants, although under their Articles of Association and the indentures above referred to, they were entitled without further authority to add the two publishing firms as co-plaintiffs, declined so to do and presented the present Appeal to this House.
My Lords, it is convenient to deal first with the question whether the Appellants, not having added the owners of the performing rights as parties to the proceedings, can obtain the relief sought. It was not maintained before your Lordships that the appellants could obtain an order for damages; but it was argued that they could claim the injunction sought, and that on two grounds.
First, it was said that by virtue of the two indentures of the 26th June 1916 and 30th July 1918, above referred to, the Appellants were the assigns of the performing rights within the meaning of section 5 (2) of the Copyright Act, 1911, and accordingly were entitled under section 5 (3) and section 6 of the Act to the injunction claimed. If this were so, the Appellants would be entitled,...
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