Experience Hendrix LLC v Purple Haze Records Ltd & Ors

Part II of the Copyright, Designs and Patents Act 1988 protects pre-commencement performances even where the performer died before the Part came into force. The rights pass to the performer’s estate and endure for the statutory period calculated by reference to the performance, publication or communication, rather than the performer’s death.

A performance is protected if the relevant country or individual qualifies when the alleged infringement occurs. Qualification need not have existed when the performance took place. This construction accords with the statutory context and the United Kingdom’s international and European obligations, while preserving the rule that conduct lawful when undertaken does not become retrospectively infringing.

The claimant asserted performers’ rights in recordings of performances given by Jimi Hendrix in the United Kingdom, Sweden and the United States between 1967 and 1970. Hendrix died before Part II of the Copyright, Designs and Patents Act 1988 came into force.

Park J granted summary judgment for the claimant: [2006] EHWC 968 (ch), [2006] EMLR 25. The third defendant appealed. He argued that Part II did not protect a performer who had already died; that foreign performances qualified only if the place or performer qualified at the date of performance; and that evidence about Hendrix’s relationship with his manager raised a triable issue over ownership.

The central questions were whether the statutory rights covered deceased performers and performances given before the relevant country acquired qualifying status, and whether the ownership defence had a real prospect of success.

1. Appeal dismissed. Jacob LJ delivered the leading judgment. Toulson LJ agreed with his construction and Keene LJ agreed with both judgments.

2. Part II of the Copyright, Designs and Patents Act 1988 conferred rights in pre-commencement performances even where the performer had died before commencement. Section 180(1) was introductory and did not impose a requirement that the performer be alive. Section 180(3) expressly extended the rights to earlier performances. Sections 191 and 192 tied their duration and transmission to the performance and the performer’s estate. A retrospectively conferred right belonging to a deceased person passed to the personal representatives by operation of law.

   This construction preserved the economic protection already recognised in Rickless v United Artists [1988] QB 40. It also accorded with the minimum protection required by the Rome Convention, the Rental Right Directive, the Term Directive and TRIPS. Those instruments calculated protection by reference to the performance, fixation, publication or communication, rather than the performer’s death. Regulation 30(1) of the Copyright and Related Rights Regulations 1996 further contemplated exercise of a new right after the performer’s death.

3. A performance need not have occurred in a country which qualified at the date of performance. Sections 181 and 206 concerned qualification at the time of the alleged infringement. The contrary construction would deprive section 180(3) of much of its effect, conflict with the system for protecting existing subject matter under TRIPS and Berne, and discriminate between performances in existing and subsequently acceding member states contrary to article 12 EC. The protection was retrospective as to subject matter, but imposed no liability for conduct which was lawful when undertaken.

4. The ownership defence had no real prospect of success under CPR 24.2. The written agreement appointed Yameta as Hendrix’s exclusive manager; it did not make Hendrix an employee or vest his performers’ rights in Yameta. Payments retained by Yameta were commission, not remuneration from an employer. The alleged recollection that Hendrix would be “employed” could not realistically vary the written agreement or establish the representation, shared convention and detrimental reliance required for an estoppel.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2007] EWCA Civ 501. Park J’s summary judgment was upheld on the deceased-performer, qualifying-country and ownership issues.
• High Court, Chancery Division: Park J granted summary judgment for the claimant and rejected all three defences: [2006] EHWC 968 (ch), [2006] EMLR 25.
• Earlier related High Court proceedings: Hart J had decided the qualifying-country issue in favour of the claimant in a related case: [2005] EWHC 249 (ch), [2005] EMLR 18. The Court of Appeal’s conclusions made the proposed appeal from that decision unnecessary.