HENDRIX CUTS THROUGH THE HAZE

Another decision of Mr Justice Hart yesterday has come to the attention of the IPKat via LexisNexis' All England Direct subscription service and is now available in full on BAILII. It's Experience Hendrix LLC v Purple Haze Records Ltd [2005] EWHC 249 (Ch) and this is how it went:

In January 1969 Jimi Hendrix and two other performers gave certain performances in Sweden. A sound recording and/or film and sound recording of them was made by a Swedish broadcasting organisation. In September 1970 Hendrix died intestate in London. Thirty years later, in November 2000, a deed of assignment and assent was executed which transferred to Experience Hendrix the whole of Hendrix's estate.

When the Swedish performances were given, private law rights and remedies in respect of the unauthorised exploitation of their performances had not yet been invented (they were first expressly provided for in Pt II of the Copyright Designs and Patents Act 1988, as of 1 August 1989). Those rights were conferred retrospectively, but they only subsisted in ‘qualifying performances’. Sweden joined the European Economic Community in January 1995. The provisions of the Act were substantially amended and expanded by the Copyright and Related Rights Regulations 1996, SI 1996/2967, which came into force on 1 December 1996. The Regulations introduced new sections 182, 182A and 182B into the Act. Article 26(1) provided that its provisions applied to copyright works made, and to performances given, before or after commencement.

Purple Haze later made and sold copies of a recording of the Stockholm performances in the United Kingdom. Experience Hendrix sued, claiming that the Stockholm performances were qualifying performances and that Purple Haze had infringed Hendrix's performer’s rights under secctions 182A and 182B of the Act. It also claimed that the second defendant, as the allegedly controlling mind of Purple Haze, was also liable for the infringements. Experience Hendrix applied for summary judgment, but Purple Haze denied liability. They said that (i) the performances were not qualifying performances, (ii) the Swedish performances were not by Hendrix alone, but by Hendrix together with the other performers, with the result that the Act bestowed only a single right on the three of them jointly, and (iii) their acts could not be infringing acts since they were based on an agreement made between Purple Haze and another company, under which Purple Haze had become entitled either in law or equity to all the rights appertaining to performances by Hendrix.

Mr Justice Hart allowed the application since Purple Haze had no prospect of successfully defending the action.

* The Stockholm performances were qualifying performances. It was difficult to see how it was possible to draw a distinction either between countries which were members of the EEC as at 1 August 1989, and those which joined after 1 August 1989 and before 1 December 1996, or between the last mentioned category and countries which might hereafter join.

Jimi Hendrix: pleased the fans during his life, pleased the lawyers after his death

* The springing interest problem was simply a consequence of the way in which the Act had been drafted and, whatever the solution might be -- if indeed there was one -- it was not to be found by interpolating an artificial temporal restriction into the definition of a qualifying country.

* The proposition that an individual who participated in a group performance did not enjoy, in his own individual right, performer’s rights was not sustainable.

* On its true construction, the agreement between YH Ltd and Hendrix contained no assignment of, or agreement to assign, the relevant rights, and it was unnecessary to imply a term to that effect in order to give the contract business efficacy.

The IPKat believes this is the correct result, though he is disappointed that so simple a set of facts (man performs; man is recorded; recording is exploited without permisssion; man sues ...) could not be resolved without the need to hack through a thicket of well-nigh impenetrable legislation.

Purple Haze sues Hendrix here and here