"No Woman No Cry" BSI and another v Blue Mountain Music Appeal

Bob Marley
Author Eddie Marlin
Source Wikipedia
Creative Commons Licence

Between 1973 and 1976 Bob Marley wrote the words and composed the music for 13 songs of which the most famous was No Woman No Cry. At that time Marley was under contract to a New York company called Cayman Music Inc. ("CMI") which should have acquired the copyrights in those songs and the resulting royalties. To get round that contract Marley pretended that those works had been written by other individuals who collected those revenues and may possibly have shared them with him. Marley died in 1981.

After his death CMI sued Marley's estate in the New York courts for the moneys that it should have received under the contract and Marley's personal representative counterclaimed for rescission of Marley's contract with CMI. CMI's claim was found to be statute barred in New York but no decision was ever made on the counterclaim.

On 20 March 1992 Island Logic Ltd., one of the subsidiaries of Island Records, agreed to buy certain copyrights from CMI. The agreement did not make clear which works were included in the sale but Island Records believed that they included No Woman No Cry and the other songs. For over 20 years one of its other subsidiaries, Blue Mountain Music Ltd. ("Blue Mountain"), collected revenues from collecting societies in respect of those sums.

In 2008  BSI Enterprises Ltd. ("BSI") agreed to but whatever copyrights in Marley's works CMI still owned and granted an exclusive licence to Cayman Music Inc. ("Cayman"), a company that had no connection with CMI.  BSI and Cayman sued Blue Mountain for a declaration that Cayman was entitled to the copyrights in No Woman No Cry and Marley's other wrongly attributed works and for an account of the moneys that it had received in respect of those works from collecting societies.

The action came on before Richard Meade QC sitting as a judge of the High Court in BSI Enterprises Ltd and another v Blue Mountain Music Ltd [2014] EWHC 1690 (Ch). The parties agreed that CMI owned the copyrights in the works in question despite Marley's ploy and that the case turned on whether those copyrights passed to Island Logic Ltd. in 1992. It was common ground that the 1992 agreement had to be interpreted in accordance with Lord Hoffmann's speech in Investors Compensation Scheme v. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896 (19 June, 1997):
'(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.
(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 2 WLR 945
(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in The Antaios Compania Neviera SA v Salen Rederierna AB [1985] 1 AC 191, 201:
"... if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense."'
In interpreting that agreement Mr Meade referred to the following agreed chronology.
    DateEvent/DocumentBundle Ref
    14 June 1968Publishing Agreement between Johnny Nash Music Inc and Bob Marley4.1/3/121
    11 Oct 1973Publishing Agreement between CMI and Bob Marley1/2/13
    11 Oct 1973 to 11 Oct 1976Works in issue composed by Bob Marley
    11 May 1981Bob Marley dies intestate
    15 October 1984Complaint in New York Action issued by CMI v Rita Marley (as administratrix of the Estate of Bob Marley), BMML and Island Records Inc & Ors4.1/1/95
    14 January 1988Judgment dismissing New York Action on limitation grounds4.1/2A/120.1
    27 April 1988Conditional Agreement between Mutual Security Merchant Bank and Trust Co Ltd (as administrator of the Estate of Bob Marley) and Island Logic Inc4.1/4/131
    20 March 1992Asset Purchase Agreement between Island Logic Ltd and Cayman Music Inc & Ors4.1/5/185
    Ancillary Agreement between Vanguard Films and Cayman Music Inc4.1/5/431
    10 September 1992Sale agreement between Mutual Security Merchant Bank and Trust Co Ltd (as administrator of the Estate of Bob Marley) and Island Logic Ltd & Ors4.2/6/484
    15 May 2006Judgment in the matter of Aston Barrett and Universal-Island Records Ltd & Ors6/19/1420
    20 May 2008Agreement between BSI Enterprises Ltd and Cayman Music Inc & Ors4.2/12/676
    1 October 2011Licence between BSI Enterprises Ltd and Cayman Music Ltd4.3/16/844
    13 April 2012Claim Form Issued1/1/1
    20 July 2012Amended Claim Form Issued1/1/1

Applying Lord Hoffmann's principles Mr Meade held that the copyrights did indeed pass to Island Logic Ltd under the 1992 agreement and dismissed the claim for a declaration and account. He added that if he was wrong Blue Mountain was entitled to a gratuitous licence to exploit those works by reason of the claimants' delay in asserting their rights.

BSI and Cayman appealed against Mr Meade's decision with the permission of the deputy judge which came on before Lady Justice Arden and Lord Justices Kitchin and Lloyd Jones (see BSI Enterprises Ltd and another v Blue Mountain Music Ltd. [2015] EWCA Civ 1151). On appeal the appellants abandoned the case that they had run at trial and argued that the 1992 agreement could not have conveyed the copyrights in No Woman No Cry because the ownership of those copyrights was uncertain because the claim and counterlaim in the New York litigation had never been resolved. In their submission the copyrights remained with CMI until it sold them to the appellants in 2008.

The Court of Appeal rejected those submissions and in particular the appellants' contention that Mr Meade fell into error in that he sought to identify and ascertain the parties' intentions and the scope of their agreement from the surrounding circumstances and then made the language of the 1992 agreement yield to them, and that he ought rather to have discerned the scope of the agreement and the intentions of the parties from the language of the agreement itself. Delivering the judgment of the Court, Lord Justice Kitchin said that the deputy judge's reasoning was unimpeachable and entirely in accordance with established principles for the construction of contracts. He said at paragraph [69] that Mr Meade 
"properly had regard to the fact that Island wanted to buy everything it could and that CMI's best opportunity to maximise its potential claim over the Misattribution Ploy was with Island. Indeed I am not surprised that the deputy judge said that for the parties to leave out the Works without saying so in terms and so maximise future uncertainty seemed little short of ridiculous."
    His Lordship concluded that No Woman No Cry and the copyrights in the other works passed to Island Logic and dismissed the appeal. Lady Justice Arden and Lord Justice Lloyd Jones agreed with him.

    The most important authority cited in this appeal is Investors Compensation Scheme v West Bromwich Building Society and it is a useful example of the application of Lord Hoffmann's principles to a copyright assignment. I have had to refer to Lord Hoffmann's principles twice in the last few weeks, once in a skeleton argument and the other time in an advice in respect of a trade mark assignment from an administrator. I think I shall add this appeal in future because Lord Justice Kitchin summarized the proper approach in one short proposition at paragraph [38]:
    "The object is to determine what the parties meant by the language they used in the contract. This involves ascertaining the meaning which the language would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, that is to say the matrix of fact. The admissible background includes everything which would have affected the way in which the language of the contract would have been understood by a reasonable person but it excludes the previous negotiations of the parties and their declarations of subjective intent."
    Should anyone wish to discuss this case he or she should call me on 020 7404 5252 during office hours or send me a message on my contact form.


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