Experience Hendrix LLC v Purple Haze Records Ltd & Anor

Performer’s rights under Part II of the Copyright, Designs and Patents Act 1988 apply to performances given before the relevant commencement date. A performance by several individuals may confer separate rights on each qualifying performer. The qualification of a foreign country is not assessed only by reference to the date of the performance.

A management agreement appointing a manager to promote a performer’s career and earn commission does not, without more, assign or authorise exploitation of performer’s rights. A director or controlling shareholder may be jointly liable for infringement where participation goes beyond constitutional control and involves a common design that infringement occur.

The claimant sought summary judgment under CPR 24.2 for infringement of performer’s rights in recordings of performances given by Jimi Hendrix in Stockholm in 1969. The claimant relied on rights said to have passed through Hendrix’s estate and been assigned to it.

The defendants raised issues concerning whether the performances were qualifying performances, whether rights belonged jointly to all group members, whether a 1966 management agreement transferred or authorised the relevant rights, and whether the second defendant was personally liable with the first defendant.

1. Qualifying performances. Part II of the Copyright, Designs and Patents Act 1988 and regulation 26(1) of the Copyright and Related Rights Regulations 1996 applied retrospectively to performances before commencement. The definition of qualifying country did not permit an artificial temporal restriction based on when the country became a member of the EEC or was designated. The Stockholm performances were qualifying performances.
2. Individual performer’s rights. A performance given by several individuals did not create only one jointly owned right. Each individual performer could have rights under the Act if the statutory qualification requirements were met. Section 191A(4) concerned joint ownership of rights in a single performer’s performances. The court left open whether one co-owner could sue without joining the others.
3. The Yameta Agreement. The agreement made Hendrix’s services subject to management and entitled Yameta to commission. Its purpose was to promote his career and procure employment. It did not transfer or agree to transfer intellectual property rights, authorise Yameta to make copies for its own benefit, or authorise exploitation for its sole benefit. The assignment, Regulation 31, Regulation 27 and licence arguments therefore had no realistic prospect of success.
4. Personal liability. A director or controlling shareholder is not liable merely because he exercises constitutional control. Liability may arise where participation in the wrongful acts goes beyond that control and he would be liable had he not held that corporate position. The relevant inquiry includes whether he intended, procured and shared a common design that infringement occur.
5. The claimant was entitled to summary judgment against both defendants.