Henry Hadaway Organisation Ltd v Pickwick Group Ltd & Ors

For sound recordings, authorship under section 9(2) of the Copyright, Designs and Patents Act 1988 is a question of fact. The person who commissions or finances a recording is not necessarily the person who undertakes the arrangements necessary for its making. The court should consider who originated the project, organised and controlled production, engaged personnel and facilities, and bore responsibility for making the recording.

A section 105 presumption may be rebutted on the ordinary balance of probabilities; it imposes no special burden. Contractual language can assign copyright where, read in its factual matrix, it clearly conveys that commercial intention. An exclusive licensee may sue as provided by section 101, but remains subject to any defence available against the copyright owner.

The claimant claimed ownership or exclusive licences of copyright in sound recordings from West End musicals. It alleged that the defendants infringed those rights by releasing recordings and adaptations under the same collection name.

The first defendant accepted that it had no copyright rights but disputed the claimant’s title. It relied on historical copyright statements, alleged assignments, and an alleged buyout or consent arrangement with the producer. The court had to determine authorship and first ownership, the effect of the relevant agreements, the section 105 presumptions, knowledge of infringement, and whether consent provided a defence.

1. Authorship and first ownership. The court held that the question under section 9(2) of the Copyright, Designs and Patents Act 1988 was factual. Pickwick 1/Carlton commissioned and financed the recordings, approved artists and paid the relevant costs. GLPL originated the concept, organised and controlled production, engaged artists, musicians and studio facilities, attended the sessions, produced the recordings and supplied the masters. GLPL therefore undertook the arrangements necessary for making the recordings and was their author and first owner. The parties were not joint authors.
2. 1992 Agreement and section 105. The missing 1992 Agreement was inferred from the subsequent evidence to have preserved GLPL’s ownership and granted Pickwick 1/Carlton an exclusive licence. Any section 105 presumptions raised by the copyright statements were rebutted on the balance of probabilities. Section 105 imposed no special burden of proof.
3. December 2008 Agreement. Applying the contractual approach in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 and Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, the wording that HHO was deemed sole owner with complete and total exploitation rights was sufficient, in its factual matrix, to assign copyright in the listed recordings.
4. Infringement and consent. Pickwick 2 knew it lacked rights to exploit the recordings and knew its releases infringed copyright. It failed to prove the alleged buyout or any collaboration and consent by GLPL. It therefore had no consent defence.
5. Order. HHO was the exclusive licensee of the recordings marked with an asterisk and owner of the copyright in the remainder. The claim succeeded.