Guest Post: Sony fails in strike out claim against Hendrix bandmates

This guest post is provided by Monica Thornell and Jonathan Coote of Bray & Krais:

“There's too much confusion, I can't get no relief” – Sony fails in strike out claim against Hendrix bandmates at English High Court 

“Soon enough time will tell…” 

A claim regarding the copyright and performers’ rights in iconic recordings made by The Jimi Hendrix Experience (“JHE”) is going to trial after the English High Court dismissed an application for strike out/summary judgment at the end of January. 

The claim is being brought against Sony Music Entertainment UK Limited by the estates of the greatest ever electric guitarist’s** permanently permed bandmates, Noel Redding (bass) and Mitch Mitchell (drums). They are seeking to establish that they have an ownership stake in both the copyrights and performers’ property rights in the tracks which the band recorded between 1966 and 1970, and that they are owed unpaid royalties from Sony as a result. Sony maintains that the worldwide copyright for the recordings is held by Experience Hendrix LLC and Authentic Hendrix LLC, who license the rights to exploit and distribute the recordings to them. Sony also argued that the original consent to the fixation of Redding’s and Mitchell’s performances in the recordings would prevent any performers’ rights claim. 

This is not the first time that the JHE recordings have been subject to a claim by Redding and Mitchell. In 1972, they each brought claims in New York against the then administrator of Hendrix’s estate. Mitchell and Redding received payouts to drop the claims, of $247,500 and $100,000, respectively. In exchange, they entered into release agreements, agreeing not to bring any future lawsuits for their share of any royalties from the JHE recordings. Even adjusted for inflation, these payments are unlikely reflect the likely current value of the exploitation of the Hendrix recording catalogue. 

Since filing in England, the Redding and Mitchell estates have also initiated a claim against Sony in the Southern District of New York citing parallel complaints. This New York action has been stayed pending resolution of the English litigation. 

“Are you experienced” 

The most recent hearing in the English proceedings was to consider Sony’s application for summary judgment (i.e. to have the case thrown out entirely) or, in the alternative, that some aspects of the claim be struck out (i.e. removed from the pleadings). To succeed in its summary judgment application, Sony needed to show that the claimants had ‘no real prospect’ of success in one or all of their claims. 

Sony argued that: 

1 the claimants failed to comply with certain procedural requirements in the Civil Procedure Rules (CPRs) regarding the proper parties to the claim and the claim for relief; 

2 the claimants had not produced sufficient evidence to establish their chain of title (i.e. that they were able to bring the claim); and 

3 that the release agreements concluded by Redding in Mitchell in the 1970s meant that they did not have the rights to pass to their estates in the first place. 

The judge, Justice Michael Green, quickly dismissed the first two procedural limbs of Sony’s argument. However, the submission regarding the validity and effect of the release agreements on the claimants’ claim was given lengthier consideration and could have more profound implications for similar cases in the future. 

"There must be some kinda way out of here…” 

On their basic construction, the release agreements are broadly drafted. However, they are subject to New York law, and for this reason the claimants sought permission to rely on a report prepared by Marc C Rifkin, their New York attorney. Mr Rifkin’s report suggested that under New York law, a general release of future claims under any agreement would be narrowly construed and “only bar claims that were within the contemplation of the parties” at the time the releases were given. This could mean that the release agreements would not disbar the claimants from bringing the current set of proceedings. 

Sony’s counsel, Robert Howe KC, conceded that if the claimants were permitted to rely on the Rifkin report, then the application for summary judgment must fail. While likely to be of some frustration to his client, this reasoning is correct. Admitting the Rifkin report would serve to demonstrate that there is a contentious issue of New York law to be tried that impacts the interpretation of the release agreements, and it would be therefore difficult for Sony to suggest that the existence of the release agreements precludes any claim from being brought by the claimants, at least with regards to the question of their copyright entitlement to the recordings. 

Major Label Kat
Image: Riana Harvey

Justice Green also turned his attention to the arguments raised by both parties around the Mitchell and Redding estates’ entitlement to claim a share of the performers’ property rights. This is an interesting legal question as the Copyright, Designs and Patents Act 1988 (the CDPA) brought in new performers’ rights, even for earlier performances such as Mitchell’s and Redding’s subject to transitional provisions regarding prior contracts. Sony argued that the original consent given by Mitchell and Redding to the fixation of their performances on the recordings, and their agreement to the 1973-1974 releases, prevented them from alleging that any subsequent infringement of their performers’ rights has taken place. Simon Malynicz KC, arguing for the claimants, suggested that an initial consent to the first fixation does not extend to the exploitation of recordings via drastically different technology – in this case digital streaming – where this technology could not have foreseeably been in existence at the time the consent was given. The judge felt that this was an argument that deserved to be fleshed out at trial; accordingly, the claimants’ performers’ rights claim could not be summarily dismissed. 

The only relief for Sony at the hands of Justice Green came with the ruling that he would strike out the allegations made by the claimants that Sony had knowingly committed secondary infringement of copyright under sections 23 and 24 of the CDPA. The judge determined this part of the claimants’ pleading to be ‘fanciful’ and having no prospect of success, accordingly ordered that it be removed entirely.  

Absent any further developments, this case will progress to trial. It is unlikely that the Mitchell and Redding estates will be prepared to settle for anything less than a very substantial payout – something that Sony does not, at this stage – appear to be minded to agree. It is likely therefore that it will stand to be determined by a High Court judge some time in 2025. 

The wider context of this case is an industry where “catalogue” (i.e. older recordings) is becoming an increasingly important revenue stream, with many of us favouring streaming old favourites as opposed to the Top 40. This means that older artists (or their estates) may slowly find that their royalties are growing, even for historic songs and recordings which may have returned relatively small sums 10 or 20 years ago – at the lowest point of the industry’s file-sharing crisis. With catalogues of rockers like Bruce Springsteen and Bob Dylan selling for $100m+, it is little wonder that Hendrix’s recordings will be fought over! 

As can be seen here, attempts by former band members to prevent or demand a cut from these sales can be complex, with contemporary agreements often reached on informal bases with poor documentation. If it does make a “slight return” and proceed to trial, issues raised in this case, such as the enforceability of historic contracts or settlements, or the effectiveness of a pre-1989 performers’ rights waiver in the streaming era, should be watched closely by rightsholders and those interested in acquiring historic catalogues, who would not want their rights to “fall in the sea”. 

A full copy of the judgment of Justice Michael Green can be found here. 

**Alternative (incorrect) opinions on the greatest guitarist are welcome in the comments.