Rickless v United Artists Corporation
| Jurisdiction | England & Wales |
| Judge | THE VICE-CHANCELLOR,LORD JUSTICE STEPHEN BROWN,LORD JUSTICE BINGHAM |
| Judgment Date | 10 December 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J1210-5 |
| Docket Number | 86/1104 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 December 1986 |
[1986] EWCA Civ J1210-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE HOBHOUSE
Royal Courts of Justice
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Stephen Brown
Lord Justice Bingham
86/1104
MR A.J. BATESON Q.C., MR M.G. TUGENDHAT Q.C. and MR D.R.K. PARSONS, instructed by Messrs Wright Webb Syrett, appeared for the Appellants (Defendants).
MR C.W.G. R0SS-MUNR0 Q.C., MR R.M. ENGLEHART Q.C. and MR ANTHONY PETO, instructed by Messrs Herbert Oppenheimer Nathan & Vandyk, appeared for the Respondents (Plaintiffs).
This is an action brought by the personal representatives of the well known film star Peter Sellers and two of his companies against the makers and distributors of a film, "The Trail of the Pink Panther"("Trail"). Trail was made after the death of Peter Sellers from material filmed during his lifetime. Hobhouse J. held the defendants liable for unauthorised use of this material and awarded the plaintiffs damages of $1,000,000, together with a limited account of the profits from the exhibition of Trail. The defendants, the makers and distributors of Trail, appeal against that decision.
The full history of the matter is set out in the exceptionally detailed judgment of the learned judge. I will only summarise the matters which are directly relevant to the issues argued in this court.
During his lifetime Peter Sellers made a series of five films in which he played the main character, Inspector Clouseau, an eccentric and accident-prone French detective. The first film in the series, The Pink Panther, was made in 1962. The character Inspector Clouseau was based on an idea of the second defendant, Blake Edwards, and was first acted by Peter Sellers. The four other films in the series were as follows:
| 1963 | Shot in the Dark; |
| 1974 | Return of the Pink Panther ("Return"); |
| 1976 | The Pink Panther Strikes Again ("Strikes"); |
| 1977 | The Revenge of the Pink Panther ("Revenge"). |
They were known as the Pink Panther films.
When a film is made far more film is shot than is eventually incorporated in the final film released for exhibition. Footages not incorporated in the final version are. called "out-takes", which comprise not only film which at the time of shooting was found unsatisfactory but also sequences which, though in themselves satisfactory, were discarded in the process of editing. "Clips", on the other hand, are excerpts from the final film as exhibited to the public.
During Peter Sellers' lifetime Blake Edwards had the idea of making a Pink Panther film using out-takes from the earlier films together with new additional material. Peter Sellers refused to agree. Peter Sellers died in July 1980. The earlier Pink Panther films had been very successful and profitable. In 1981 United Artists and Blake Edwards decided to make Trail. Trail purports to be a feature film starring Peter Sellers, but is in fact made up to a considerable extent of out-takes or clips of Peter Sellers' performances in the earlier films. The defendants tried to get the agreement of the plaintiffs, as personal representatives of Peter Sellers, but terms could not be agreed. Having failed to get the agreement of the plaintiffs, the defendants took legal advice and then decided to make Trail using the out-takes and clips from the earlier films without the specific consent either of Peter Sellers himself or of his personal representatives. Trail was made by the defendant Lakeline Productions Limited (a company controlled by Blake Edwards) as a film starring Peter Sellers. Trail was financed and distributed by United Artists. The defendants have paid nothing for the use of the material containing Peter Sellers' performance in Trail.
Clips from each of the five films are incorporated in Trail. The only out-takes used come from Strikes. Out of the total running time of Trail—97 minutes—out-takes from Strikes make up 23 minutes and clips from the five films make up 14 minutes-a total of 37 minutes.
The defendants say that they were entitled to make use of the clips and out-takes because the owpership of both the physical celluloid and the copyrights in the out-takes and clips is vested in them or their associates. The plaintiffs, on the other hand, say that the terms of the individual contracts under which Peter Sellers provided his services for each of the films preclude the use of the out-takes and clips in a wholly different film, Trail. It is therefore necessary to consider the contracts in some detail. But at this stage I will seek merely to explain the nature of the contractual background.
Each of the films was made by a separate company ("the production company") which was the creature of Blake Edwards, a producer and director. All the films were distributed by United Artists, who also financed all the films save Return. Contrary to normal practice, United Artists does not itself produce films. As a result, in relation to the making of each film there is a separate contract for Peter Sellers' services entered into by the production company responsible for the production of that film.
On the other side of the bargain, save in one case, Peter Sellers himself did not directly contract to provide his services. No doubt for fiscal reasons, Peter Sellers entered into contracts with what are called "loan-out companies"(controlled by Peter Sellers) under which the loan-out company was authorised to contract with producers to provide Peter Sellers' services. As a result, in the case of most of the films, the contract under which Peter Sellers provided his services as an actor was made between one of Peter Sellers' loan-out companies on the one side and one of Blake Edwards' production companies on the other.
At the expense of strict accuracy, the contractual arrangements regulating the provision of Peter Sellers' services in the making of each film were therefore as follows. In relation to each of the films there was a contract between one or more of Peter Sellers' loan-out companies and one of Blake Edwards' production companies: this contract is referred to as "the loan-out agreement". The loan-out agreement regulated the terms on which Peter Sellers was providing his services for that particular film. Under the finance and distribution agreements between the production company and United Artists, all the rights of the production company were assigned to United Artists. It follows that none of the defendants to this action were parties to the contracts under which Peter Sellers' services were rendered. Accordingly, even if the plaintiffs are right as to the effect of the loan-out agreements, they have no remedy for breach of contract against these defendants, since these defendants are not parties to the loan-out agreements. There is one exception to this, namely, the first film, The Pink Panther; in relation to that film United Artists entered into a direct contract with Peter Sellers for the provision of his services.
The plaintiffs' claim against the defendants is put in four different ways. First, it is alleged that the making of Trail constituted a breach of section 2 of the Dramatic and Musical Performers Protection Act 1958 ("the 1958 Act") as amended, which makes it an offence knowingly to make a film directly or indirectly from, or by means of, the performance of a dramatic or musical work without the consent in writing of the performer. The plaintiffs' case is that the 1958 Act confers on a performer private rights of action enforceable in the civil courts and that those rights have been infringed in that the use of the clips and out-takes involves the indirect use of Peter Sellers' performances. The defendants contend that the 1958 Act gives the performers no civil remedy; that the contracts for the provision of Peter Sellers' services in each of the earlier films contained his consent to the use of clips and out-takes in Trail; that they had not "knowingly" made Trail without the necessary consents; and, finally, that the 1958 Act does not apply to a film made (as was Trail) after the death of the performer.
On this aspect of the case the judge held substantially in favour of the plaintiffs. He held that a breach of the 1958 Act does give the performer a personal remedy by way of injunction or damages in lieu; that the 1958 Act renders unlawful the unauthorised reproduction of a performance even after the death of the performer; and that the loan-out agreements did not contain consents to the making of Trail from clips or out-takes, save in relation to the use of the clips from Strikes and Revenge. Under this head, therefore, the judge held the defendants liable in damages under the 1958 Act for the use of all the clips and out-takes from the earlier films, save that the defendants were not liable under the 1958 Act for the use of the clips from Strikes and Revenge.
The second way in which the plaintiffs put their claim is breach of contract. This claim relates only to The Pink Panther and is made against United Artists only. It is alleged that the use of the clips in the making of Trail was a breach of an express or implied term of The Pink Panther agreement and that United Artists were parties to that agreement. Before the judge United Artists denied that they were parties to the agreement and argued that use of the clips was in any event not a breach of such agreement. The judge held that United...
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