Copyright and Rights in Performances - Noel Redding Estate Ltd v Sony Music Entertainment UK Ltd

The Jimi Hendrix Experience.

Author Warner Enterprise Records  Licence Public Domain Source Wikimedia Commons

 

Jane Lambert

Court of Appeal (Lord Justices Newey, Arnold and Birss) Noel Redding Estate Ltd and another v Sony Music Entertainment UK Ltd [2025] EWCA Civ 66 (6 Feb2025)

This was an appeal by Sony Music Entertainments UK Ltd ("Sony") against Mr Justice Michael Green's refusal to strike out or grant summary judgment dismissing claims by Noel Redding Estate Ltd, and Mitch Mitchell Estate Ltd. for declarations as to the ownership and relief for infringement of copyright and performers' rights in Noel Redding Estate Ltd and another v Sony Music Entertainment UK Ltd [2024] EWHC 128 (Ch) (29 Jan 2024). 

Grounds of Appeal

Sony appealed on the following grounds:

1.  Mr Justice Michael Green had been wrong to reject Sony's contention that the claim for infringement of performers' rights was precluded by the transitional provisions contained in s.180 (3) of the Copyright, Designs and Patents Act 1988 ("CDPA"), reg 27 (2) of The Copyright and Related Rights Regulations 1996 (SI 1996/2967) and reg 32 (2) of The Copyright and Related Rights Regulations 2003 (SI 2003/2498); and
2. His lordship had been wrong to reject Sony's contention that the copyright claim was statute-barred as being a claim in respect of partnership assets.

The Appeal

The appeal was heard by Lords Justices Newey, Arnold and Birss on 30 Jan 2025. Their lordships delivered judgment on 6 Feb 2025 (see Noel Redding Estate Ltd and another v Sony Music Entertainment UK Ltd [2025] EWCA Civ 66). Lord Justice Arnold delivered the lead judgment with which Lord Justice Newey and Lord Justice Birss agreed.  By para [64] of his judgment, Lord Justice Arnold dismissed the appeal.

The Parties

Noel Redding Estate Ltd. amd Mitch Mitchell Estate Ltd. represent the estates of Noel Redding ("Redding") and Mitch Mitchell ("Mitchell").  Redding and Mitchell together with the late Jimi Hendrix had been members of the band known as the Jimi Hendrix Experience.  Sony is a sub-licensee of Sony Music Entertainment, a partnership established under Delaware law.  It claims a licence from Experience Hendrix LLC to exploit the following recordings by the Jimi Hendrix Experience, Are You Experienced, Axis: Bold as Love and Electric Ladyland made in 1967 and 1968 respectively.

The Claim

The estates of Redding and Mitchell claim copyright and performers' rights in the above recordings. They complain that Sony has infringed their rights by making those works available to the public through such streaming services as Amazon Prime and Spotify.

Performers' Rights

Redding and Mitchell's estates claim infringement of rights granted by s.182A, s.182B, s.182C and s.182CA of the CDPA.  

In its strike-out and summary judgment application, Sony contended that all the alleged acts of infringement were done "in pursuance of arrangements made before" 1 Aug 1989 within s.80 (3) and therefore did not infringe any performers' rights. It also contended that they were done "in pursuance of" "an agreement made before 19 November 1992 within reg 27 (2) of the 1996 Regulations, and therefore did not infringe any "new right" which Sony says includes the rights conferred by ss. 182A, 182B and 182C. Sony also contends that they were done "in pursuance of" "an agreement made before 22 December 2002" within reg 32 (2) of the 2003 Regulations, and therefore did not infringe any "new right", which Sony says includes the right conferred by s. 182CA.

Mr Justice Michael Green held at para [78] of his judgment that "the Claimants have a more than arguable case that the original consent [given by Redding and Mitchell in their 1966 agreement with Jimi Hendrix to set up their band and to share the proceeds from any recordings] does not include consent to the present exploitation of their performers' property rights and that this question may well involve a factual inquiry."

Sony contended that the judge had erred in reaching that conclusion in that he should have held that it was sufficient to engage s.180 (3) as it was common ground that Redding and Mitchell had consented not only to the making of the master sound recordings of their performances but also to their subsequent commercial exploitation through the manufacture and sale of vinyl records.  Accordingly, it submitted that no factual enquiry was required and that it was not even necessary to construe the 1966 agreement.

Lord Justice Arnold said at para [38] of his judgment that in order to determine whether Sony haf a defence under s.180 (3) it was necessary to answer two questions. First, whether "arrangements" had been made prior to 1 Aug 1989? Secondly, whether Sony's allegedly infringing acts had been done "in pursuance of" those arrangements?  So far as the first question was concerned, Sony relied solely upon the undisputed fact that, by entering into the 1966 Agreement, Redding and Mitchell consented not only to the making of the master sound recordings of their performances but also to their subsequent commercial exploitation through the manufacture and sale of vinyl records. As for the second question, Sony submitted that nothing further was required. It was sufficient that Redding and Mitchell gave what Sony characterized as consent to the full extent then required by the Performers' Protection Acts. Sony argued that the purpose of s.180 (3) was to protect parties who rely upon such consents from infringing the broader rights subsequently conferred by Part II of the 1988 Act. That amounted to an argument that Redding and Mitchell had thereby exhausted their rights.

The learned Lord Justice could not accept that argument for the reasons set out in paras [41] to [43] of his judgment:

"[41] ............. First, the words "in pursuance of" plainly require some nexus between the allegedly infringing acts and the "arrangements" relied upon. On Sony's argument no nexus at all would be required. The party committing the allegedly infringing acts could be a complete stranger to the arrangements in question (as indeed, on Sony's pleaded case, Sony is). This would eviscerate the rights conferred by Part II of the 1988 Act.
[42] Secondly, a party who is in a position to rely upon consent given by the performer in question does not need to rely on section 180 (3). Where consent is relied upon, the ambit of the consent is critical. It would be very odd if section 180 (3) could be relied upon to circumvent the limits on any consent given by the performer. Yet the effect of Sony's argument is that the ambit of the performer's consent is immaterial. In saying this, I am not intending to exclude the application of section 180 (3) in some circumstances (such as the example of a distributor of illicit recordings postulated in Performers' Rights at 5-108).
[43] Thirdly, section 180 (3) has nothing to do with exhaustion of rights. If a performer's rights have been exhausted on ordinary principles (for example, a performer's reproduction and distribution rights will be exhausted in relation to a particular CD whose manufacture and sale the performer has consented to), section 180 (3) is not required. If the performer's rights have not been exhausted on ordinary principles (for example, the performer's making available right, which is not exhausted by a previous making available of the same recording of the same performance), section 180 (3) does not provide for exhaustion."

Copyright

By para 33 of their particulars of claim, the estates of Redding and Mitchell claimed to be the joint owners of the copyrights in the above-mentioned recordings and sought a declaration as to the extent of any ownership that they might have.  In their prayer, they claimed a declaration as to ownership of the copyrights in the recordings and either an inquiry as to damages or an account of profits, for infringement of those copyrights.

Sony contended that this was a claim to a share of partnership assets which was barred by s.23 of the Limitation Act 1980. The judge rejected this contention on the ground that the estates were not claiming a share of partnership assets. Sony argued that the judge was wrong because that was exactly what the particulars of claim do.

Lord Justice Arnold held at para [54] of his judgment the judge had been correct to hold that the claimants' copyright claim was not statute-barred for two interrelated reasons.   First, it was not an action for an account.  An account of profits is a remedy for infringement of copyright which was the nature of the action.  Secondly, this was not a claim to a share of partnership assets, which is also why it was not an action for an account.  His lordship characterized the case as follows at para [62]:

"In the present case the Claimants' copyright claim is a claim by two of the former partners of JHE against Sony, which was never a partner. It is therefore the external perspective that matters, and from that perspective the relationship between the former partners is irrelevant. Even viewed from the internal perspective, however, this is not a claim to a share of partnership assets."

Comment

This case illustrated the difference between the term of an intellectual property right and the limitation period.   As Lord Justice Arnold observed at [54], "the Claimants cannot claim damages or profits which accrued more than six years before the issue of the Claim Form by virtue of section 2 of the 1980 Act." Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during UK office hours or send me a message through my contact page.