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

The Court of Appeal dismissed Sony's appeal against the judge's refusal to strike out or enter summary judgment on the Claimants' claims for declarations of ownership and infringement of copyright and performers' property rights. The court held that section 180(3) of the Copyright, Designs and Patents Act 1988 does not operate to extinguish performers' property rights merely because performers had previously consented to the making and commercial exploitation of sound recordings; there must be a sufficient nexus showing the allegedly infringing acts were done "in pursuance of" arrangements made before 1 August 1989. The court explained that section 180(3) is not a vehicle for exhaustion of rights and that the ambit of any consent remains critical. The court also held that the Claimants' copyright claim is not statute-barred as an action for an account under section 23 of the Limitation Act 1980 because it is a claim for copyright infringement (with an account of profits as a proprietary remedy) rather than a claim to a share of partnership assets.

Background and parties. The claimants are the successors in title to Noel Redding and Mitch Mitchell, former members of The Jimi Hendrix Experience. The defendant is Sony Music Entertainment UK Limited, a sub-licensee exploiting sound recordings from three studio albums recorded by the band in 1966–68 (the Recordings). The Claimants allege joint ownership of the sound recording copyrights and performers' property rights in Redding's and Mitchell's performances and assert that Sony's exploitation, particularly via on-demand streaming, infringes those rights.

Procedural posture. These proceedings began in February 2022 and the judge below (Michael Green J) refused Sony's strike-out/summary judgment application by order dated 22 February 2024, for reasons given in his judgment of 29 January 2024 ([2024] EWHC 128 (Ch)). Sony obtained permission to appeal on two grounds: (1) that the Claimants' performers' property rights claims are precluded by the transitional provisions in section 180(3) CDPA 1988 and regulations implementing later EU directives; and (2) that the Claimants' copyright claim is statute-barred as a claim in respect of partnership assets under the Limitation Act 1980.

Issues framed. The court focussed on (i) whether section 180(3) protects acts done "in pursuance of arrangements made before" 1 August 1989 so as to preclude claims under the performers' property rights subsequently created or extended; and (ii) whether the Claimants' copyright claim is a claim to a share of partnership assets and therefore subject to the time limits and procedural requirements applicable to actions for an account.

Nature of relief sought. The Claimants sought declarations as to ownership of the copyrights and performers' property rights, and remedies for infringement including damages or an inquiry and alternatively an account of profits.

Reasoning on performers' rights (ground 1). The court accepted four common-ground interpretive points: that only acts done "lawfully" pursuant to pre-commencement arrangements can be protected; that "arrangements" extends beyond contracts; that the performer need not necessarily have been a party to the arrangements; and that section 180(3) extends to all rights conferred by Part II as amended. The court held that section 180(3) requires a nexus between the allegedly infringing acts and the prior arrangements; it cannot be read to extinguish or exhaust a performer's later-created property rights merely because the performer once consented to the making and sale of vinyl records. The ambit of any consent remains critical. Section 180(3) is not a substitute for exhaustion doctrine and does not itself effect exhaustion of rights such as the making-available right.

Reasoning on copyright/limitation (ground 2). The court held that the Claimants' claim is in substance a claim for copyright infringement (a tort) and, to the extent they seek an account of profits, that remedy relates to Sony's alleged infringement rather than a claim to partnership assets. Accordingly, section 23 Limitation Act 1980 did not operate to statute-bar the claim as an action for an account. The court explained the distinction between a partner's external proprietary share and the internal accounting process on dissolution and concluded that the claim for declarations and for remedies for infringement did not amount to a barred action for an account.

Other points. The judge had found the Claimants had a more than arguable case that historic releases and discontinuances did not bar the claims; Sony did not challenge that finding on appeal. The court therefore dismissed the appeal and upheld the judge's order refusing strike-out/summary judgment.

Appeal dismissed. The Court of Appeal agreed with the judge that section 180(3) CDPA 1988 does not automatically preclude performers' property rights claims from acts said to be done pursuant to pre-commencement arrangements absent a proper nexus and an assessment of the ambit of any prior consent, and that the Claimants' copyright claim is not a time-barred action for an account under section 23 Limitation Act 1980 because it is a claim for infringement (with an account of profits as a remedy) rather than a claim to a share of partnership assets.

Appeal from the High Court of Justice, Business and Property Courts of England and Wales, Intellectual Property List (ChD), Michael Green J, [2024] EWHC 128 (Ch). Permission to appeal granted by Falk LJ.