Noel Redding Estate Limited & Anor v Sony Music Entertainment UK Limited

Section 180(3) of the Copyright, Designs and Patents Act 1988 protects post-commencement acts only where arrangements were lawfully made before commencement and the acts were done in pursuance of those arrangements. The latter requirement demands a real nexus; historic consent to recording and earlier commercial exploitation is insufficient, particularly where the defendant is a stranger to the arrangements. The provision is not an exhaustion rule and cannot circumvent the limits of consent. A former partner’s copyright-infringement claim against a non-partner, including a claim for an account of the infringer’s profits, is not an action for an account of partnership assets. The limitation bar for an action for an account therefore did not apply.

Sony appealed against paragraph 3 of an order made by Michael Green J, which dismissed its application to strike out or obtain summary judgment on claims brought by the estates of Noel Redding and Mitch Mitchell concerning copyright and performers’ rights in recordings made by The Jimi Hendrix Experience. The first-instance judgment was reported as [2024] EWHC 128 (Ch).

The appeal concerned whether transitional provisions protected Sony’s exploitation of the recordings from performers’ rights claims, and whether the copyright claims were time-barred as claims relating to partnership assets. The central questions were the scope of section 180(3) of the Copyright, Designs and Patents Act 1988 and the application of section 23 of the Limitation Act 1980.

Appeal dismissed unanimously. Lord Justice Arnold gave the leading judgment, with which Lord Justices Birss and Newey agreed.

1. Performers’ rights. The parties accepted that “lawfully” should be read into section 180(3) of the Copyright, Designs and Patents Act 1988, that arrangements were not confined to contracts, and that the defence, if available, extended to all rights conferred by Part II. The defence required two questions to be answered: whether arrangements had been made before 1 August 1989, and whether the allegedly infringing acts were done in pursuance of those arrangements.
2. The words in pursuance of required a nexus between the acts and the arrangements. Sony’s case treated the performers’ historic consent to recording and vinyl exploitation as sufficient, even though Sony did not rely on contractual consent to its own acts. That approach would make the nexus unnecessary and could allow a stranger to the arrangements to defeat the performers’ rights. The judge was therefore right not to strike out the claims or grant summary judgment.
3. Section 180(3) was not an exhaustion provision. Where rights were exhausted under ordinary principles, the provision was unnecessary. Where they were not exhausted, including the making available right, section 180(3) could not create exhaustion. It was consequently unnecessary to decide the alternative transitional provisions in the Copyright and Related Rights Regulations 1996 and the Copyright and Related Rights Regulations 2003.
4. Limitation and partnership assets. The copyright claim was not an action for an account within section 23 of the Limitation Act 1980. The alternative account sought was an account of Sony’s profits from copyright infringement, making it a remedy for the tort. Section 2 nevertheless prevented recovery of damages or profits accruing more than six years before issue of the Claim Form.
5. A partnership share is an entitlement to the net proceeds after realisation of assets and payment of liabilities. The internal relationship between partners differs from the external position, where the partners collectively hold each asset in undivided shares. As JHE’s copyrights had not been sold or divided, the claimants’ pleaded joint legal title was not converted into a claim merely for a partnership share. The appeal was dismissed.

• Court of Appeal (Civil Division): In [2025] EWCA Civ 66, Sony’s appeal against paragraph 3 of the order was dismissed.
• High Court of Justice, Intellectual Property List (ChD): Michael Green J, in [2024] EWHC 128 (Ch), dismissed Sony’s application to strike out or obtain summary judgment, subject to limited relief under paragraphs 1 and 2 of the order.