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Musical copyright decision by IPEC

Written by Ellis Sweetenham on 27 November 2015

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Henry Hadaway Organisation Ltd v Pickwick Group Ltd and others - [2015] All ER (D) 231

Facts:

Between 1991 and 1997, recordings of musicals were made by a music publisher and distributor (Carlton).

They were made in accordance to an arrangement between GL, an independent record producer who died in June 2011, and Carlton (the 1992 agreement).

The claimant company, HHO, was an independent music distributor. It submitted that copyright in each of the recordings vested in GLPL, a management company owned by GL and his wife.

HHO claimed that it was an exclusive licensee of some of the recordings, outlined in an agreement with GLPL of February 2008 (the 2008 agreement), and the owner of copyright for the remainder of the recordings, explained in an assignment from GLPL of December 2008.

HHO claimed copyright infringement in the recordings against the first defendant company, Pickwick, for the recordings and adaptation of the recordings from October 2009.

Pickwick accepted that it had no right, title or interest in the recordings, and that the release of the Pickwick-issued recordings infringed copyright in the manner claimed. It denied that HHO was the owner or exclusive licensee of those copyrights and sought dismissal of the claim.

Issues:

Three issues remained for consideration:

  1. Whether HHO was the owner of the copyright in the recordings or, alternatively, whether HHO was an exclusive licensee of the copyright in the recordings.
  2. Whether Pickwick had known or had had reason to believe that the copies they were making were infringing copies.
  3. If HHO was an exclusive licensee of GLPL, whether the buyout agreement or any collaboration of GL in the release of the Pickwick-issued recordings afforded Pickwick a defence of consent to any infringing acts.

Judgment:

On the evidence, as the person who had made the arrangements necessary for the making of the recordings, GL had been the author and first owner of the copyright in them.

The 1992 agreement had not displaced the copyright from GLPL, but had merely provided Carlton with an exclusive licence to exploit the recordings in return for a royalty.

There was no evidence, beyond a mere assertion by Carlton, that there might have been any assignment by GLPL of copyright in the recordings to Carlton, otherwise than stated in the 1992 agreement.

There was no evidence of a later assignment to Pickwick.

The evidence overwhelmingly pointed to the 1992 agreement as either expressly confirming GLPL's rights as first owner of copyright in the recordings or merely providing an exclusive licence of his copyright to Carlton.

The wording of the 2008 agreement had been sufficiently clear to convey to the reasonable person that it had been intended to be an assignment of copyright in the recordings to HHO.

The relevant employees of Pickwick had accepted that Pickwick had known that it was neither the owner nor the licensee of the copyright in the recordings at the time that the recordings in issue had been released.

On the evidence, Pickwick had known that the Pickwick issued recordings had infringed the copyright in the recordings at the time of release. It had no defence of consent to infringing acts in relation to those recordings, the ownership of which remained in GL.

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