Sony Music Entertainment UK Ltd v Noel Redding Estate Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwin Johnson |
| Judgment Date | 25 April 2023 |
| Neutral Citation | [2023] EWHC 941 (Ch) |
| Docket Number | Appeal Reference: CH-2022-000137 |
| Court | Chancery Division |
[2023] EWHC 941 (Ch)
Mr Justice Edwin Johnson
Appeal Reference: CH-2022-000137
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
ON APPEAL FROM THE ORDER OF DEPUTY MASTER RHYS DATED 21ST JUNE
2022 (Reference No. IL-2022-000013)
Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
Robert Howe KC (instructed by Simkins LLP) for the Defendant/Appellant
Simon Malynicz KC and Bruce Drummond (instructed by Keystone Law Limited) for the Claimants/Respondents
Hearing date: 23 rd March 2023
Remote hand-down: This judgment was handed down remotely at 10.30am on 25 th April 2023 by circulation to the parties and their representatives by email and by release to the National Archives.
Introduction
This is my reserved judgment on the hearing of an application for permission to appeal/appeal against an order of Deputy Master Rhys made on 21 st June 2022. By that order ( “the Order”) the Deputy Master dismissed the application of the Defendants/Appellants, pursuant to CPR Part 11, for a setting aside or stay of this action on the grounds that this dispute should be heard in New York or, in the alternative, that this action should be stayed until proceedings in New York, involving what is said to be the same issue as arises in this action, have been determined.
Permission to appeal against the Order was refused by the Deputy Master. The application for permission was renewed before me, on the papers. By an order made on 4 th November 2022, I directed that the application for permission to appeal should be considered at a hearing, with the hearing of the appeal to follow, if permission to appeal was granted. This hearing was therefore the hearing of the application for permission to appeal and, subject to the grant of permission, the appeal itself.
With the agreement of counsel, I heard the arguments on both sides in relation to the application for permission to appeal and (subject to the question of permission) in relation to the appeal. This is therefore my reserved judgment on the application for permission to appeal and, subject to my decision on that application, on the appeal itself. Unless it is necessary to distinguish between the two, I will use the general expression “the Appeal” to mean both the application for permission to appeal and the substantive appeal.
It is convenient to continue to refer to the Defendant in this action, which is the appellant in the Appeal, as “the Defendant”, and to continue to refer to the Claimants, who are the respondents in the Appeal, as “the Claimants”.
At this hearing Robert Howe KC, counsel, appeared for the Defendant. Simon Malynicz KC and Bruce Drummond appeared for the Claimants. I am grateful to counsel for their written and oral submissions, and to the legal teams for the parties for their work in preparing the documents for this hearing.
The Defendant's application challenging jurisdiction was made by application notice issued on 16 th March 2022 ( “the Application”). The Deputy Master dismissed the Application for the reasons set out in his judgment, dated 21 st June 2022. I will refer to the judgment of the Deputy Master as “the Judgment”. References to Paragraphs in this judgment are, unless otherwise indicated, references to the paragraphs of the Judgment. Italics have also been added to quotations in this judgment.
The background to the Application
In setting out the background to the Application I am deriving my information principally from the Judgment and the Claimants' Particulars of Claim. By reason of the jurisdictional challenge to the action, the Defendant has yet to plead its case in response to the Particulars of Claim. I am of course making no final determination, in this judgment, on any facts and issues other than those necessary to the determination of the Appeal.
The case advanced by the Claimants in this action ( “the Action”), which was commenced by Claim Form issued on 4 th February 2022, is they are entitled to a share in the sound recording copyrights in certain recordings. The recordings in question were created and released as three studio albums of The Jimi Hendrix Experience band. The Claimants also claim to be entitled to performers' rights in respect of these recordings.
Noel Redding and Mitch Mitchell were, with Jimi Hendrix, the members of the band known as The Jimi Hendrix Experience ( “JHE”). The three studio albums released by JHE, prior to the death of Jimi Hendrix, were (i) Are You Experienced, (ii) Axis: Bold as Love, and (iii) Electric Ladyland. Jimi Hendrix died in 1970. Noel Redding died in 2003. Mitch Mitchell died in 2008. The Claimants' case is that the First Claimant now owns a share of the sound recording copyrights and performers' rights in relation to the three albums, which were previously vested in Noel Redding, and that the Second Claimant now owns a share of the sound recording copyrights and performers' rights in the three albums, which were previously vested in Mitch Mitchell.
The Defendant's case is that the worldwide copyright in the relevant sound recordings ( “the Recordings”) is owned by two LLCs registered in the US state of Washington. They are Experience Hendrix LLC and Authentic Hendrix LLC (together “the Hendrix Companies”), which derive their title to the copyright in the Recordings from the estate of Jimi Hendrix ( “the Hendrix Estate”). Strictly speaking, my understanding is that Experience Hendrix LLC is, on the Defendant's case, the sole owner of the copyright in the Recordings, by assignment from the Hendrix Estate, while Authentic Hendrix LLC is the worldwide licensing arm of Experience Hendrix LLC. It is however convenient, at least for the purposes of this judgment, to refer to the Hendrix Companies as the parties claiming sole ownership of the copyright in the Recordings.
The Defendant, which is a company registered in this jurisdiction, has a sub-licence from Sony Music Entertainment ( “SME”) to exploit the copyright in the Recordings. SME is a Delaware partnership, with its principal place of business in New York. SME is said to have the worldwide exclusive licence to exploit the copyright in the Recordings, granted by the Hendrix Companies.
The heads of relief sought in the Particulars of Claim are as follows (quoting directly from the prayer to the Particulars of Claim):
“(1) A declaration as to ownership of the copyright in the Claimants' Copyright Works [The Claimants' Copyright Works are defined in paragraph 10 of the Particulars of Claim to mean the sound recording copyrights subsisting in the three albums].
(2) A declaration as the extent of their performer's rights including any duty on the Defendant to pay to a relevant collecting society remuneration due under CDPA 1988, s 191HB. [The statutory reference is to Section 191HB of the Copyright, Designs and Patents Act 1988 ( “the 1988 Act”)].
(3) A declaration as to any beneficial rights.
(4) An inquiry as to damages for infringement of copyright (including damages under reg.3 of the Intellectual Property (Enforcement etc.) Regulations), alternatively and at the Claimant's option an account of profits, together with an order for the payment to the Claimants of all sums found due upon the making of the said inquiry or the taking of the said account together with interest pursuant to section 35A of the Senior Courts Act 1981 or under the equitable jurisdiction of the court.
(5) An order that the measures be taken at the Defendants' expense for the dissemination and publication of any judgment favourable in whole or in part to the Claimants or either of them herein.
(6) Further or other relief.
(7) Costs.”
The commencement of the Action is not the first occasion on which there has been litigation concerning the entitlement of Mr Redding and Mr Mitchell to payment in respect of their participation in JHE. In 1972 they commenced proceedings (strictly a Complaint) in New York ( “the 1972 Complaint”) against the Hendrix Estate, and a company known as Are You Experienced Limited (described by the Defendant as the corporate vehicle of the Hendrix Estate), seeking an account and payment of royalties said be due to them. In 1973 Mr Redding entered into a settlement of his claim and executed a document described as a “Release, assignment and covenant not to sue”, in consideration of a payment of US$100,000. In 1974 Mr Mitchell entered into a settlement of his claim, and executed a similar document, in consideration of a payment of US$247,500. I will refer to these settlement documents, collectively, as “the Releases”. At Paragraph 5, the Deputy Master made the following observation on the Releases:
“On their face, they appear to be very comprehensive waivers of any present and future rights of action for copyright infringement. In consequence of the settlement embodied in these documents, both claims were discontinued “with prejudice”, meaning that they could not be revived.”
On 8 th December 2021 the Claimants' solicitors sent a lengthy letter of claim to the Defendant. This was followed by further correspondence between the solicitors for the Claimant and the solicitors for the Defendant, but in the meantime, on 18 th January 2022, the Hendrix Companies and SME commenced proceedings (again strictly a Complaint) in New York against the Claimants seeking a declaratory judgment. In very brief summary, what is sought by the Plaintiffs in those proceedings is declaratory relief to the effect that Mr Redding and Mr Mitchell surrendered any rights they had in the Recordings when they executed the Releases, and that the Releases now bar any claim to a share in the copyright...
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