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Friday, 16 June 2006

BOURNE TO BE ... INFRINGED; LATEST JIPLP


Bourne to be ... infringed

The IPKat has been pondering Bourne and others v Davis (trading as Brandon Davis Publishing), a Chancery Division decision of Mark Herbert QC (sitting as a deputy judge of the High Court yesterday). This is only a LexisNexis note at the moment, so he's bursting to read the transcript of the full judgment if there is one [it may have been delivered extempore].

Between December 2000 and October 2001 Bourne and three other musicians wrote and performed songs together. While developing songs and compositions they recorded a set of nine songs in a hotel room in London. Later, the four stopped performing together. Bourne then became involved in another band, 'Busted', and concluded a recording contract with the second claimant. By that contract Bourne assigned all his rights, including his performer's rights (section 180 of the Copyright, Designs and Patents Act 1988) for recordings made before the date of the contract. Busted then had a bust-up and stopped playing together and Bourne joined a new group, 'Son of Dork'. At this juncture Bourne signed yet another contract, this time with the third claimant (an affiliate of the second claimant), which also took an assignment of his performer's rights for performances occurring before the date of that contract.

Meanwhile, Davis made a compact disk comprising an album of the nine tracks performed by the original group of four musicians,. The CD was advertised on a website and with printed flyers, for sale by mail order. Bourne and his two assignees sued for infringement of his performer's rights and for passing-off, seeking summary judgment. They asked for a permanent injunction, delivery-up of infringing materials and printed flyers and damages. Davis denied liability, saying he was the assignee of the performer's rights under an agreement made with another member of the original group, who purportedly signing the assignment on behalf of 'the partnership' of the four original musicians.

Mark Herbert QC granted summary judgment. On the evidence, Davis (who was unrepresented) had no real prospect of defending the issue and there was no other compelling reason why it should be disposed of at a trial. He agreed that it was at least arguable that the property rights in issue were partnership property. But, even if the property rights were partnership property, that did not mean that they became exclusively the property of 'the partnership' to the extent of divesting the rights conferred on the four individual musicians, or so as to divest them of their beneficial interests in those rights. On the facts, Bourne's reproduction and distribution rights in the relevant performance had been infringed.

The IPKat hopes the judge has got this one right ... he's played it through three times now and he's still dithering. If this was decided on the evidence, there's no argument.

A different Brandon Davis here (beware of the kung fu gopher)
A different nine songs here (not for respectable folk)


Latest JIPLP

There are some things in life that you just can't rush, says the IPKat - and one of them is the June issue of OUP's monthly Journal of Intellectual Property Law and Practice, which has just wended its stately way to the letterboxes of the good and the mighty.

Exciting stuff in this issue includes Australian scholar Yee Fen Lim's review of nightmare IP scenarios for both makers and players of MMORPGs. Department of Trade and Industry legal services adviser Phillip Johnson asks how you can tell whether European Community obligations have been lawfully implemented or not, while Gert Würtenberger (Wuesthoff & Wuesthoff, Munich) explains some of the key issues in litigating plant variety right infringement. There are also some percipient comments in the Current Intelligence section, covering software patents, best method disclosures, registering foreign-language words as trade marks and plans to tackle counterfeits.

Full list of contents here; sample issue here; subscribe here; sign up for a monthly email containing each new issue's table of contents here; 50 most frequently-read JIPLP articles here

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