Not available elsewhere, this decision of Mr Justice Warren in Experience Hendrix LLC and another v Times Newspapers Ltd was picked up by subscription service LexisNexis Butterworths. It emanates from the Chancery Division (England and Wales) on 14 December.
Experience claimed it was the owner of (i) the performer's rights in the performances given at the Royal Albert Hall (London, England) in February 1969 by the late Jimi Hendrix, and (ii) the copyright in the sound recordings of those performances. Experience sued the publisher of The Times newspaper, saying that the publisher had infringed its rights by authorising and procuring the manufacture, and the issuing to the public, of compact discs featuring copies of those recordings. The Times denied infringement, pleading that the allegedly infringing acts had actually been licensed. The basis of the defence was the existence of a chain of licences, beginning with a letter from the mid to late 1970s, which gave it a defence under section 180(3) of the Copyright, Designs and Patents Act 1988, which states:
"The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights".Experience applied for summary judgment on the ground that The Times had no reasonable prospect of defending the claim; The Times in turn applied to adjourn the application pending the submission of further evidence relating to the purported licences.
Mann J held that, on the evidence before him, The Times had no reasonable prospect of defending the claim. The original letter was not a contractual document and no other evidence of a contractual relationship between the parties existed. However, The Times would be given the chance to obtain further evidence. If no further evidence was forthcomig, Experience would be awarded summary judgment.
The IPKat notes that, at least in this short note of the ruling, the judge was concerned that the arrangement upon which The Times relied was not a contractual document. Secdtion 180(3) does not however stipulate that the arrangements relied upon by the party claiming to be licensed have to be contractual -- even though, in the real world in which copyrights are jealously guarded and profitably exploited, it will generally be the case that a licence will have originated from a contract.
Earlier IPKat posts regarding Jimi Hendrix's pre-1988 performances here and here
Jimi Hendrix fan club on Bebo here
Hear Jimi Hendrix here