Strand, London, WC2A 2LL
B e f o r e :
| ASTON BARRETT
|- and -
|(1) UNIVERSAL-ISLAND RECORDS LIMITED
(2) UMG RECORDS INC
(3) RITA MARLEY
(4) CEDELLA ANITA MARLEY
(5) DAVID NESTA MARLEY
(6) STEPEHN ROBERT NESTA MARLEY
(7) ROHAN ANTHONY MARLEY
(8) ROBERT NESTA MARLEY
(9) KAREN SOPHIA MICHELLE MARLEY
(10) JULIAM RICARDO MARLEY
(11) BLUE MOUNTAIN MUSIC LIMITED
(12) ODNIL MUSIC LIMITED
(13) FIFTY-SIX HOPE ROAD MUSIC LIMITED
Ms Elizabeth Jones QC and Mr Daniel Lightman (instructed by Eversheds) for the Defendants
Hearing dates: 16th 17th 27th 28th 29th 30th 31st March 2006
3rd 5th 6th 7th April 2006
Crown Copyright ©
Mr Justice Lewison:
|Introduction and parties||1|
|Approach to the evidence||6|
|Bob Marley and the Wailers: the early years||17|
|The contractual documents||29|
|The contract claims||32|
|The copyright claims||34|
|Money making: the general picture||36|
|The arrival of Don Taylor||39|
|The 1974 agreement||41|
|What the documents show||41|
|The contents of the 1974 agreements||46|
|The immediate aftermath||53|
|Natty Dread and Rastaman Vibration||56|
|A fifty-fifty split||60|
|Bob Marley and his companies||63|
|The 1975 agreement||68|
|The Media Aides agreement||76|
|Payments during Bob Marley's lifetime||84|
|Bob Marley's death and its aftermath||104|
|Previous claims by the Wailers||110|
|The 1986 New York action||110|
|The 1989 Jamaican action||113|
|The 1989 New York action||122|
|The 1994 Settlement Agreement||125|
|Devolution of title||147|
|The current claim and its progress||149|
|The strike out application||149|
|The first issues for decision||150|
|The effect of the 1994 settlement agreement||151|
|Approach to construction||152|
|The context of the 1994 settlement agreement||154|
|The words of the settlement agreement||157|
|Should the 1994 settlement agreement be enforced against Mr Aston Barrett?||162|
|The position of the estate of Carlton Barrett||168|
|Cause of action estoppel||175|
|The English test||176|
|New York law||181|
|Abuse of process||191|
|Application: Aston Barrett||194|
|Application: the estate of Carlton Barrett||197|
|Estoppel acquiescence and laches||200|
|The contract claims||211|
|The pleaded case||211|
|Was Carlton Barrett party to the 1974 recording agreement?||212|
|What Mr Barrett said||214|
|Island Records' version||216|
|Was Bob Marley an agent for the Barrett brothers?||230|
|The 1975 agreement||232|
|The Media Aides agreement||235|
|Trust of a promise?||238|
|What is the breach of contract alleged?||246|
|Music making: the general picture||257|
|A fraud on Danny Sims?||278|
|Music making: the documentary evidence||290|
|Music making: the specific compositions||297|
|Who the Cap Fit||298|
|Rebel Music (3 O'Clock Roadblock)||304|
|Them Belly Full (But We Hungry)||323|
|The copyright claims||345|
|Who the Cap Fit||355|
|Effect of revocation||365|
|The performers' right claims||367|
|The scope of the claim||368|
|The statutory provisions||369|
|A new right?||376|
|Consent to what?||383|
|Prior arrangements or agreements||386|
|Was there no consent?||395|
Introduction and parties
Approach to the evidence
Bob Marley and the Wailers: the early years
"Marley, Tosh and Livingston were joined by Aston "Familyman" Barrett and his brother, Carly. The current Wailers stand unchallenged as the leading group on the reggae scene."
The contractual documents
i) a letter dated 15 October 1974 and signed by Bob Marley;
ii) a recording agreement. It takes the form of a letter from Island addressed to Bob Marley and the Barrett brothers and incorporating standard conditions, but signed by Bob Marley alone;
iii) a side letter dealing with the possible role of a production company, again addressed to Bob Marley and the Barrett brothers;
iv) a side letter dealing with album sleeves, again addressed to Bob Marley and the Barrett brothers.
The contract claims
The copyright claims
|Rebel Music (3 O'Clock Roadblock)||Aston Barrett, Hugh Peart|
|Talkin' Blues||Carlton Barrett, Legon Coghil|
|Them Belly Full (But We Hungry)||Carlton Barrett, Legon Coghil|
|Revolution||Carlton Barrett, Legon Coghil|
|War||Carlton Barrett, Allan Cole|
|Want More||Aston Barrett|
|Who the Cap Fit||Aston Barrett, Carlton Barrett|
Money making: the general picture
i) Artist royalties, paid by the artist's record company to the artist or his company pursuant to the terms of the recording contract;
ii) Mechanical royalties, which are paid by the record company to the owner of the copyrights in the songs which have been recorded, in consideration of a "mechanical licence" from the copyright owner permitting the song to be reproduced by mechanical means, i.e. a record or tape and now a CD or DVD;
iii) Performance royalties, which are paid by collection societies, particularly ASCAP in the USA and PRS in the UK, to the owner of the copyrights in the songs (called the publisher's share) and also (separately) to the writer of the songs (the writer's share);
iv) Income from touring; this would be in part receipts from promoters, but also the tour would typically be supported by the record company which would pay "tour support"; and
v) Income from sales of merchandise.
The arrival of Don Taylor
"[F]rom the beginning of 1974 … I acted as Bob Marley's personal manager including managing the business and financial matters of "Bob Marley and the Wailers" partnership and of various companies affiliated with Bob Marley and/or "Bob Marley and the Wailers"."
The 1974 agreement
What the documents show
"Wailers new deal for Bob Marley – [Family Carly]"
|Option to take up on same basis
We advance rec costs royalty as BM"
"I enclose herewith a draft of the proposed agreement with Bob Marley and the Wailers. If the agreement is in order would you please arrange for it to be signed by Bob Marley, Family Man and Carly and return it to me in due course."
"Our clients and I are most anxious to finalize execution of the subject agreements. It would be greatly appreciated if you can revise the agreements in accordance with our comments and transmit execution copies thereof to me for execution by our clients."
The contents of the 1974 agreements
Concurrent with the delivery to you of his letter, I am executing an exclusive artist's recording agreement with you dated as of August 27, 1974. Pursuant to the terms of such agreement, Island Records Ltd will be paying to me on behalf of "The Wailers" an advance, which is due upon delivery of my next album "Natty Dread", which was recently delivered to you.
Therefore, this letter constitutes my irrevocable authorization and instruction to you to disburse from such advance US$3401.26 payable to the law firm of Sanders & Tisdale. You may deliver this check to Mr Raphael E Tisdale of that firm.
Very truly yours,
PKA "Bob Marley"
on behalf of 'The Wailers""
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY & THE WAILERS
Attention care of Mr Raphael E. Tisdale
We hereby confirm the terms of your exclusive recording agreement with us which terms are contained in this letter and the annexed artists recording contract standard conditions ("the Conditions")"
|$15,000||On acceptance of the first album|
|$12,500||On completion of the first US tour|
|$12,500||On acceptance of the second album|
|$15,000||On completion of the second US tour|
|$15,000||On acceptance of each album during the first renewal term|
|$15,000||90 days after acceptance of each album during the first renewal term|
|$20,000||On acceptance of each album during the second renewal term|
|$20,000||90 days after acceptance of each album during the second renewal term|
i) Condition 1, which contains definitions. The definition of "period" was contained in the letter agreement itself. The period was to begin with the beginning of the recording of "Natty Dread" and to end on 26 August 1975 or (if later) 60 days after the artists had recorded not less than two albums. Island Records also had an option to extend the period; in each case for one further year. The definition of "Artist" was as follows:
""the Artist" shall mean the Artist or Artists whose names and addresses appear at the head of the Agreement…"
ii) Condition 2A which entitled the Artist to a royalty in respect of each record solely incorporating his performance recorded in pursuance of the agreement;
iii) Condition 3 which said:
"The Artist shall during the period … shall render … such performances (whether alone or together with any one or more other artists…as the Company shall elect for the purpose of reproduction in or by any sound recording (which expression shall be deemed to include … video tapes and any similar devices whereby the Artist's performances can be recorded for use in synchronisation with visual images)."
iv) Condition 5 (D) which said:
"The Artist warrants and undertakes with the Company that the material recorded hereunder shall be mutually agreed between the Company and the Artist… and will be available to the Company for use in connection with records on the standard terms and conditions for the licensing of copyrighted material for records…and shall not infringe or violate any other right of any person…"
v) Condition 8, which required Island Records to account for payments at intervals of six months;
vi) Condition 10 by which the Artist assigned to Island Records the exclusive right of production reproduction sale and distribution of recordings incorporating the Artist's performances made in pursuance of the agreement;
vii) Condition 18 by which the Artist gave Island Records the "requisite consents" under the Dramatic and Performers Protection Acts in order that Island Records "should have the fullest use of the Artist's activities hereunder and the products thereof".
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY AND THE WAILERS
We refer to our agreement of even date herewith. We understand that you may wish to form a production company which will supply your services to us and we confirm that in such circumstances we would be prepared to enter into a new agreement with such production company to supply your recordings on the same terms and conditions as those set out in the said agreement provided that you personally guaranteed all obligations of such production company and provided that we would incur no greater obligations and we would suffer no diminution of rights than we have under the said agreement from monies payable to such production company under such new agreement."
"Mr Bob Marley
Mr Aston Barrett
Mr Carlton Barrett
p/k/a BOB MARLEY AND THE WAILERS
Attention care of SANDERS AND TISDALE
With regard to our agreement of today's date herewith, we confirm that the details of sleeves and the text of liner notes for albums released pursuant to the said agreement shall be subject to the approval of you or your authorised representative (subject to your availability to give such approval and subject to such approval not being unreasonably withheld) until such time as your said approval is given we will have no obligation to pay the advance in respect of the album concerned…"
The immediate aftermath
"While Bob has signed it it still requires signature by Aston Barrett and Carlton Barrett before any money is paid."
"I can now confirm that we have not received a fully executed copy of the new Bob Marley and the Wailers agreement. Accordingly the old agreement is still in force and as a matter of goodwill we have been making certain payments to Bob Marley as advances in the spirit of the new agreement. This has been done entirely on an ex gratia basis and without prejudice to our contractual position.
Accordingly there are at present no advances due to Bob Marley out of which we can pay the balance of the legal charges which are due from Bob to you. However, as soon as we receive the fully executed contract we would be able to make payment of this balance.
With regard to the question of the amount due to you I confirm that it had been our impression … that the $3,500 originally paid would cover your costs and that if there were any balance you would be returning this to Bob Marley. However you have assured me as Bob Marley's attorney that Bob is fully aware of the full amount of your bill … and that Bob has authorised us to pay you the balance…"
Natty Dread and Rastaman Vibration
A fifty-fifty split
"As I told you, I don't do the business part of the deal. Bob did all of that with Don Taylor and Island."
Bob Marley and his companies
The 1975 agreement
"Mr Bob Marley
p/k/a BOB MARLEY & THE WAILERS
all care of 56 Hope Road, Kingston, Jamaica
We hereby confirm the terms of your exclusive recording agreement with us, which terms are contained in this letter and the annexed artist recording contract standard conditions…"
"[L]et this letter serve as authorization for you to advance a retainer of $1400 U.S. per month to Carlton Barrett and Aston Barrett, members of the Wailers, when these individuals are not on tour, and to deduct same from session costs pertaining to your contract with Bob Marley."
"With regard to your letter concerning Carlton Barrett and Aston Family Man Barrett I have today forwarded the sum of $8400 to your account … and I have instructed further payments to be made of the same amount on 1st March, 1st June, 1st September and 1st December. This is on the basis that Bob Marley can request us to terminate this arrangement at any time and on the basis that we can terminate it if it results in us paying monies that are in excess of those due under our contract with Bob Marley, and that we can also terminate it if Bob Marley should agree to Carly and Family Man recording for an artist not on the Island label. I should be grateful if you would let me have a copy of Bob's agreement with Carly and Family Man just for the purpose of completing our records when this is signed."
"With regard to Carlton and Aston recording for an artist not on the Island label, I should like to make you aware of the fact that Bob Marley's agreement with Carlton and Aston has nothing to do with his agreement with Island Records. In fact, Carlton and Aston are free to work with anyone Bob chooses without causing termination of Bob's financial agreement with Island Records."
You have informed us that Bob Marley, Carlton Barrett and Aston Barrett (hereinafter called "the Artists") whose recording services are exclusively contracted to Island Records Ltd have performed on an album by your artist Martha Valez entitled ….
6. Island Records Ltd shall receive a credit on all album sleeves containing recordings made by the Artists as follows
"appears by courtesy of Island Records Ltd'"
"Q. … In what if any circumstances did Island Records require artist credits on albums released by other record companies not in the Island Group?
A. You mean if an artist appeared on another label?
A. We would ask for a credit. We would request a credit.
Q. In what circumstances?
A. If we requested a credit, it would be because the artist was signed to Island Records."
The Media Aides agreement
"Any royalty due to [Bob Marley] or to a producer or Engineer or to any union or union fund … or to any third party (other than mechanical royalties …..) in respect of recordings made hereunder shall be paid by [Media Aides] out of the royalty payable to [Media Aides] hereunder …."
"5D [Media Aides] undertakes with [Island] to procure that [Bob Marley] will record for [Island] and [Media Aides] will deliver to [Island] the amount of double sided long playing albums set out in the attached letter…..
6A …[Media Aides] hereby indemnifies [Island Inc] from loss or damage…arising out of any claim by a third party which is inconsistent with any of the warranties representations and undertakings made by Media Aides and/or [Bob Marley] in this agreement…"
11. [Media Aides] hereby licences in perpetuity to [Island] all present and future record and recording copyrights and [Island] shall be entitled to the ….sole and exclusive right in perpetuity …of production reproduction sale and distribution…by any means whatsoever of all such recordings…..
18. [Media Aides] hereby grants unto [Island] all consents (including the requisite consents pursuant to the provisions of the British Dramatic and Music Performers Protections Acts 1958 to 1972) in order that the Company should have the fullest use of the Artist's service hereunder and the products thereof;
22. Licensor shall pay to the Artist, to the individual producers and to any other persons participating in the production of the Masters any and all royalties which may be payable to them or any of them by reason of the manufacture and sale throughout the world of records embodying Masters recorded hereunder…"
"the musical compositions … listed or described below, the words and music of which were or shall be written by Bob Marley … or such other compositions written by other songwriters owned or controlled by [Bob Marley Music Ltd BV]"
"the Prior Compositions comprise all of the compositions … and that the names of the respective composers thereof, ……. are listed on Schedule A annexed hereto…"
|Title and writer||Publisher|
|Belly Full a/k/a/ Them Belly Full (But We Hungry)
Legon Cogil/Carlton Barrett
|Tuff Gong Music|
|Rebel Music (3 O'Clock Roadblock)
Aston Barrett Hugh Peart
|Tuff Gong Music|
Carlton Barrett/Legon Cogil
|Tuff Gong Music|
|Tuff Gong Music|
Allen Cole/Carlton Barrett
|Tuff Gong Music|
|Who the Cap Fit
Aston Barrett/ Carlton Barrett
|Tuff Gong Music|
Payments during Bob Marley's lifetime
"To my experience, the way Bob Marley and The Wailers were at that time , they were more a spiritual type of band. They were more into the One Love facets of expressing themselves and it was not about Babylon system and Babylon style of making money. So I did not feel comfortable to approach him in a Babylon style fashion. When I say Babylon, I mean like western world, capitalism and stuff like that."
"You see, The Wailers were touring extensively. They had shows in between the tours. They were earning money from being paid for the tour. They were being paid monies while on tour. They came home. They were into a recording situation. They were paid for recording. It was not a matter like every six months they were getting money. Their money was coming in on a fairly regular basis from tours, shows and recording sessions."
"Q. So you asked Bob if you could have money every quarter?
A. It was done, yes.
Q. But you did not ask Island for quarterly payments, did you?
A. Bob did all the business, Miss Jones. Please, Miss Jones, Bob did that. I do the music."
"Bob took care of the business in that aspect, and I took care of the music; and whatever he gave to my brother and me and for the rest of the band, everyone was satisfied. We were happy."
"Q. So after 1975 your understanding was that whatever Bob's arrangements were you were happy with them and you were happy with the money he was giving you, is that right?
A. That is right."
"We never paid royalties to Aston Barrett or Carlton Barrett. If they were paid any money at any time, it was on the request of Bob Marley."
"What happened was that Bob wished to have Aston Barrett and Carlton Barrett permanent members of his band. In order to do that, it was required to give them a regular pay cheque. If I may just say one thing, you know, we are talking about 32 years ago. At that period in time, as I think we have established, the records were not selling very much. Bob Marley now, at this point in time, has sold probably 20 times as many records post his passing than he did before. It would have made more sense, much more sense, for Aston and Carlton to get a regular pay cheque than to be a royalty earner. Now that we are looking at huge sales, it may look differently but, at the time ---"
"Bob Marley… made payments from time to time and in varying amounts to the various backup musicians who from time to time recorded with him or accompanies him on the tours under the name the Wailers. My investigation indicates that a total of at least 25 different individuals at one time or another during the period 1972 to his death were involved as members of such backup groups….the files in my possession and my investigation do not indicate any evidence whatsoever of any type of "joint venture" or "partnership" arrangements with the individuals who from time to time made up the backup groups… indeed this would be extremely difficult to even accomplish given the fact that from album to album and tour to tour the individuals comprising the backup group changed. All payments made by Bob Marley to the various members from time to time of the backup groups bear no relation either in time of payment or in amount of payment to the royalties Bob Marley or Media Aides received from Island Records during this period."
"Q. Mr. Anderson, what we say in fact happened was that Bob Marley paid all the band members what he considered appropriate when he considered it appropriate. You were paid, in effect, weekly when you were on tour and when you were recording, he would pay people according to their contribution to the recordings. So that somebody who had spent a lot of time and effort on it or perhaps gave him an idea for a song would get more money than somebody who had not done those things. Is that your recollection of what happened?
"[I]n the name of Bob Marley, I distributed 50% of the partnership's profits to the members of The Wailers band after taking off all costs and expenses. Such distribution took place from time to time as revenues were collected."
Bob Marley's death and its aftermath
Previous claims by the Wailers
The 1986 New York action
The 1989 Jamaican action
"3. From in or about the year 1977 to the date of death of [Bob Marley] the Plaintiffs together with Carlton Barrett formed a partnership and/or joint venture with [Bob Marley] and carried on the partnership business of recording and publishing musical items, performing on concert tours and stage shows, product licensing and merchandising and sharing equally in all profits and losses arising therefrom.
3A. The said partnership or joint venture commenced prior to 1977, in or about the year 1967, when it included [Bob Marley] [Aston Barrett, Alvin Patterson and Earl Lindo] along with Peter McIntosh and Bunny Livingston….Peter Tosh and Bunny Livingston retired from the partnership and [Tyrone Downie] joined the said partnership in or about 1970. [Al Anderson] was admitted to the said partnership in or about 1973 and [Junior Marvin] in or about the year 1977. The said Carlton Barrett left the partnership in the same manner as did [Bob Marley], by way of death in or about 1987.
4. [Bob Marley] was the managing partner for the partnership known as "Bob Marley and the Wailers" and, either personally or through companies owned and controlled by him, negotiated and executed contracts on behalf of the Partnership.
5 to 7. [Dealt with the 1981 agreement between the Wailers and the Estate]
8. The Defendant has refused to recognise the said partnership or the Plaintiffs' entitlement to a 50% share in the said royalties and threatens to sell the Royalty Rights and distribute the proceeds of the sale thereof to the beneficiaries of the estate thereby depriving the Plaintiffs of their share of the partnership profits and will do so [unless] restrained from so doing by this Honourable Court."
i) a declaration that "during the lifetime of [Bob Marley] the plaintiffs were Partners with [Bob Marley] in the business of recording, producing, retailing and performing certain musical and other works";
ii) an order that the estate account to the plaintiffs for "their 50% share of the royalties or other income received by the Defendant and due to the Plaintiffs as the result of the said Partnership"; and
iii) An injunction restraining the estate from disposing of any of the assets of the estate affected by the plaintiffs' claim.
".. the arrangement that [Bob Marley] had with the Plaintiffs and with each of them was then whenever they performed along with the deceased he would pay them such remuneration as their services warranted and which was done for many years without complaint from the Plaintiffs or any of them."
"[M]ost of the songs preformed by the partnership were written by Robert Marley but some songs were co-written by members of the Wailers entitled those members to song-writing royalties as well."
"The [1974 agreement] is exceedingly significant, since it was the agreement which was specifically intended to re-establish a partnership between Bob Marley and those persons comprising the Wailers. Furthermore it was this agreement which established the nature of the relationship between Island Records on the one hand and Bob Marley and the Wailers on the other hand with respect to the course of dealing."
"[I]t was natural to expect royalties as long as there were royalties. As long as the records were being sold, and publishing etc., we expected to be paid."
The 1989 New York action
i) That pursuant to various record contracts between Island Inc and the Estate of Bob Marley, royalties were generated by partnership assets.
ii) That the plaintiffs had not, since Bob Marley's death, received from the estate or Island Inc an account of those royalties reportable by the estate as the succeeding managing partner of the partnership.
iii) That the estate as managing partner stood as fiduciary to the other partners and in that capacity had an obligation to account which it had failed to comply with, and that Island Inc, with whom the estate had contracted had also failed to make available accounts pursuant to its various contracts with the partnership.
i) an account from Island Inc of all revenues earned since 1981 by the alleged partnership and a declaration of the rights to and the ownership of the Wailers' interest in the partnership; and
ii) damages "representing the difference in royalties earned and actually paid to the Wailers".
The 1994 Settlement Agreement
"There was no way Chris could have said that because The Wailers were never in a royalty-receiving situation. Chris could not be promising them royalties. He had no authority to do it. If there [were] any new recordings, then they would probably be entitled to royalties. As for what happened in the past, he could not have been in a position to offer Family Man royalties from Bob's estate."
i) Carlton Barrett's estate was not a party to the proceedings. The case was not about recovering money for his estate;
ii) Mr Barrett was not the kind of person who negotiated on business matters, as he repeatedly emphasised in his evidence. It is much more plausible that he went to ask for financial help;
iii) Mr Blackwell had no interest in Bob Marley's estate and it is implausible that he would have promised to pay royalties;
iv) It was in the estate's interest to bring the proceedings to a conclusion quickly, so as to be able to make undisputed title to the musical assets. It would not have been in the estate's interest to prolong the litigation. Nor would it have been in the interest of any purchaser of those assets to have done so.
i) $500,000 to be paid to the plaintiffs to be shared in such manner as they thought fit; half payable immediately and the remainder after twelve months;
ii) A new compilation album, called "Legend 2" to be launched. The Wailers would be guaranteed involvement in its promotion and would be paid not less than $500,000;
iii) A contribution of $100,000 towards the Wailers' legal costs;
iv) In return the Wailers would release all their claims.
"Our clients have instructed us to accept the offer as set out in yours of January 13, 1974 subject to an improved scheme for payment which, in part, seems to be reflected in your latest letter."
"… we can tell you from now that our clients would not be asking for any major share of any royalty payments to yours. If, cumulatively, your clients could consider, say, 4 points to the Wailers from the album and a similar sort of arrangement from the exploitation of the tour, that would be enough to satisfy the principle that our clients are trying to establish."
WHEREAS By an Agreement dated the 10th day of September 1992 Island Logic and the Adult Beneficiaries purchased certain assets from the Estate of Robert Nesta Marley, O.M. (hereinafter referred to as "the Assets" and "the Estate" respectively)
AND WHEREAS The Wailers have made certain claims in Suit No. CL B 003 of 1989 and in an action brought in the United States District Court for the Southern District of New York, Civil Action No 89 Civ 5286 (KC) and otherwise in relation to the Assets
AND WHEREAS The parties have agreed to settle the aforesaid and other claims in the manner hereinafter appearing
IT IS HEREBY AGREED AS FOLLOWS: -
1. Island Logic and The Adult Beneficiaries will pay to Messrs Nunes, Scholefield, DeLeon & Co. on behalf of The Wailers the sum of US$500,000.00 payable as hereafter provided.
3. Upon execution of this agreement as aforesaid, Island Logic and The Adult Beneficiaries will pay the further sum of US$100,000.00 towards The Wailers' legal fees.
4. It is agreed and acknowledged that the aforesaid sums are not paid pursuant to any liability on the part of Island Logic or The Adult Beneficiaries or The Estate or any related company or entity. The Wailers acknowledge and agree that they do not have now and have never had any claim against The Assets or The Estate or Island Logic, Inc., Island Logic, Island Records, Inc., Island Records, Limited or the Island Trading Co., Inc.
5. In consideration of the aforesaid payment, The Wailers hereby jointly, severally, unconditionally, irrevocably and absolutely release and discharge Island Logic, The Adult Beneficiaries, Mutual Security Merchant Bank and Trust Company Limited., J. Reid Bingham, The Estate, The Infant Beneficiaries of the Estate, namely, Stephanie Sahi Marley, Makeda Jahnesta Marley, Kymani Ronald Marley and Damian Alexis Robert Nesta Marley, Island Logic, Inc., Island Records, Inc., Island Records Limited., Island Trading Co., Inc., and each of their parents, affiliates, licensors, licensees, predecessors, successors, designees, assigns and all persons claiming through or under them, and each of their officers, directors, representatives, agents, attorneys and employees (collectively, "Releasees"), from and against any and all causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, trespasses, damages, judgments, executions or claims, however denominated, in law or equity, which the Wailers ever had, now or hereafter can, shall or may have against the Releasees.
6. The Wailers agree to cause [the 1989 New York Action] to be removed from the Court's suspense Calendar and further agree to promptly execute and file a Stipulation and Order of Discontinuance with Prejudice of the  New York Action, without costs of disbursements to any party.
7. The Wailers further agree that in the event that any claim in relation to the assets is made on behalf of the estate of Carlton Barrett, they will, if called upon by the person or persons against whom any such claim is made, testify as to the matters set out in paragraph 4 hereof."
Devolution of title
i) the rights to receive royalties from Island Ltd and Island Inc under the 1974 and 1975 recording agreements;
ii) The master recordings owned by the estate embodying Bob Marley's performances (with or without others);
iii) the copyrights in the Bob Marley music catalogue (including the disputed compositions); and
iv) the copyrights in the Cayman Catalogue (including Revolution).
The current claim and its progress
The strike out application
"The four days this hearing occupied were filled with detailed arguments on the facts and the law. I have a strong suspicion that on many, if not all, issues the defendants are likely to prevail at the trial. This is bolstered by the fact that Mr Barrett admits that his case now is, in material respects, different to cases advanced by him in the past. But, to obtain relief at this stage it is necessary for the defendants to show that the claims of both of the Barretts are fanciful. That must be clear without the need for a mini-trial. It may be said that this plays into the hands of litigants who can engineer complexity. That may be so. At the end of the day such tactics will result in heavy awards of costs and, where appropriate, heavy orders for security. But if, as here, the issues appear to be complex and difficult to unravel even after a prolonged hearing, then the case is not suitable for summary determination. I have come to the conclusion that the issues raised here are far too complex and numerous. It would not be safe to strike out the claims at this stage. In the circumstances, the defendants' applications for summary judgment and to strike out fail."
The first issues for decision
The effect of the 1994 settlement agreement
i) What claims did it expressly compromise?
ii) What, if any, terms are to be implied into the express agreement?
iii) Should the agreement be enforced against Mr Aston Barrett?
iv) If the agreement does not cover the claims that Mr Aston Barrett now seeks to raise, is it an abuse of process for him to seek to raise them?
v) Is it a breach of contract or an abuse of process for Mr Aston Barrett to bring a claim on behalf of his brother's estate?
Approach to construction
i) There are no special rules for interpreting releases or compromise agreements: Lord Bingham of Cornhill at para 8; Lord Nicholls of Birkenhead at para 26;
ii) There is no question of a document having a legal interpretation as distinct from an equitable interpretation: Lord Nicholls at para 24;
iii) The meaning to be given to the words used in a contract is the meaning which ought reasonably to be ascribed to those words having due regard to the purpose of the contract and the circumstances in which the contract was made: Lord Nicholls at para 26;
iv) A party may, at any rate in a compromise agreement supported by valuable consideration, agree to release claims or rights of which he is unaware and of which he could not be aware, even claims which could not on the facts known to the parties have been imagined, if appropriate language is used to make plain that that is his intention: Lord Bingham at para 9;
v) The wording of a general release and the context in which it was given commonly make plain that the parties intended that the release should not be confined to known claims. On the contrary, part of the object may be that the release should extend to any claims which might later come to light. The parties want to achieve finality. When, therefore, a claim whose existence was not appreciated does come to light, on the face of the general words of the release and consistently with the purpose for which the release was given the release is applicable. The mere fact that the parties were unaware of the particular claim is not a reason for excluding it from the scope of the release. The risk that further claims might later emerge is a risk the person giving the release took upon himself. It is against this very risk that the release is intended to protect the person in whose favour the release is made: Lord Nicholls at para 27;
vi) However, this principle cannot be pressed too far. In the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware: Lord Bingham at para 10; Lord Nicholls at para 28.
The context of the 1994 settlement agreement
The words of the settlement agreement
"from and against any and all causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, trespasses, damages, judgments, executions or claims, however denominated, in law or equity, which the Wailers ever had, now or hereafter can, shall or may have."
Should the 1994 settlement agreement be enforced against Mr Aston Barrett?
"(2) An agreement made between A and B will not affect A's rights against C unless either (a) A agrees to forgo or waive rights which he would otherwise enjoy against C, in which case his agreement is enforceable by B, or (b) the agreement falls within that limited class of contracts which either at common law or by virtue of the Contracts (Rights of Third Parties) Act 1999 is enforceable by C as a third party." (Emphasis added)
"From these cases (the facts of which do not matter) we think the following propositions emerge.
1. Equitable fraud (something which is unconscionably unfair) is the basis upon which the Courts will restrain or stay the proceedings on the application of a stranger to those proceedings. The power to do so is discretionary.
2. Something more than a promise not to sue is required. The applicant must show that he has some interest of his own to protect. This has been expressed in various ways viz.: "Some other good reason", "the real possibility of prejudice" and "some legal or equitable right to protect such as an obligation to indemnify the defendant".
3. Whether the applicant has shown that he has such an interest depends upon the facts of each case. Where for example there is an issue as to whether the applicant will be required to indemnify the defendant if the proceedings continue the Court must consider the likelihood of a claim for indemnity being made and its merits if it is said to be obviously unsustainable, but no prolonged investigation of the issues or potential issues is called for."
a) the cause of action against C is extinguished by the agreement between A and B: see Hirachand-Punamchand v. Temple  2 KB 330, 339 (per Fletcher Moulton LJ);
b) for A to bring an action against C would be a fraud on B, in the sense of a breach of promise made for consideration: see Morris v. Wentworth-Stanley  QB 1004, 1018 (per Potter LJ)
c) to bring an action in such circumstances is an abuse of the process of the court: see Snelling v John Snelling  1 QB 79.
The position of the estate of Carlton Barrett
"The principle which underlies both the law of contempt of court and the rules governing the immunity of witnesses from suit, however, is that, as a matter of public policy, the court will prevent and, if necessary punish, conduct which interferes with the proper administration of justice. Thus, "any contract which has a tendency to affect the due administration of justice is contrary to public policy": see Halsbury's Laws of England. In any individual case therefore the question is: has the act impugned interfered with, or will it interfere with, the due administration of justice? It is not sufficient merely to pose the question: is the effect of the agreement that a party or a witness may be prevented from putting forward a particular contention in court or before a tribunal? It is necessary to take a broad view of the public interest and, where necessary, seek to achieve a balance between countervailing public policy considerations. Thus in the present case there is the public interest in allowing business to be transacted freely and in holding commercial men to their bargains.
There are many circumstances where parties can properly and legally reach agreements as to the future course of legal proceedings. The law favours rather than disapproves of the compromise of a civil action, and the court will intervene to prevent a party pursuing a legal remedy in breach of a valid compromise. …
The court will consider the facts of each case. But where, as here, a commercial agreement relating to land has been entered into between parties as arm's, length and one party agrees in return for a very substantial payment to support the other party's applications for planning permission we can see no rule of public policy which renders such an agreement illegal or unenforceable. This does not mean of course that a witness could be prevented by agreement from giving evidence on subpoena, because this could involve an interference with the course of justice. But we are satisfied that on the facts of this case the covenantors cannot rely on any rule of public policy which would enable them to ignore the provisions in …the letter of undertaking and to volunteer to oppose [Cabra's] application. Nor can we find any ground of public policy which could be invoked to prevent the first plaintiffs and the club writing a letter to the Secretary of State and the planning authority in strict accordance with … the letter of undertaking stating that "the Companies" support the planning application and are in favour of it being granted. We see no objection to the inclusion of a sentence in the letter to the effect that it is written in accordance with the letter of undertaking…"
"The only way in which public policy can properly be invoked in the construction of a contract is under the rule ut res magis valeat quam pereat: if the words are susceptible of two meanings, one of which would validate the particular clause or contract and the other render it void or ineffective, then the former interpretation should be applied even though it might otherwise, looking merely at the words and their context, be less appropriate."
Cause of action estoppel
The English test
"…it seems to me to verge on absurdity that we should regard as conclusive something in a German judgment which the German courts themselves would not regard as conclusive. It is quite true that estoppel is a matter for the lex fori but the lex fori ought to be developed in a manner consistent with good sense."
"Another aspect of finality relates to the requirement that the decision relied upon as estoppel must itself be res judicata in the country in which it is made. … It would, indeed, be illogical if the decision were to be res judicata in England, if it were not also res judicata in the foreign jurisdiction. I am not satisfied that the respondents have discharged the burden of proof upon them of establishing that the West German judgment is res judicata in West Germany."
"The textbooks are in agreement in stating that for a foreign judgment to be set up as a bar in this country it must be res judicata in the country in which it is given… [G]enerally, it would seem unacceptable to give to a foreign judgment a more conclusive force in this country than it has where it was given. In relation to the present case I think that "conclusive" must be taken in the sense that if the Stiftung represented by the Council of Gera were to attempt to commence another action in West Germany against the same defendants as were parties to the previous action they would, by the force of the previous judgment, be prevented from proceeding with it."
New York law
"[a] dismissal with prejudice has the effect of a final adjudication on the merits favourable to defendant and bars future suits brought by plaintiff upon the same cause of action."
"… [W]e recognize that when declaratory relief is sought it may be possible to sue on a claim which could be regarded as not yet existing. Yet we think that it is reasonable to consider that when both damages for past conduct and declaratory relief governing future events are sought, the parties naturally would focus their attention on the existing monetary claims. Indeed, we believe that a court should be cautious in according res judicata effect to the dismissal of the declaratory judgment aspects of a combination damages and declaratory judgment action, lest a settlement leading to a dismissal with prejudice have unintended consequences."
"For my part, I see nothing in the suggestion that evidence of Indian law is required in order to establish that the cause of action sued on in India was the same as that relied on here. I accept Mr. Gruder's submission that it is a matter for English law to determine whether the causes of action were the same; there is no evidence or argument that they were not and, until the contrary is proved, Indian law must be presumed to be the same as English law. With the effect of the Indian judgment in India we are not concerned." (Emphasis added)
Abuse of process
"The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
"It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953)…. There is, of course, no doubt that Mr Johnson could have brought his action as part of or at the same time as the company's action. But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court." (Emphasis in original)
"There was no valid reason for Macmillan not joining L.B. as a defendant to the first action, so that all claims in relation to the title to the Berlitz shares could be decided in the same action and bind all interested parties . . . it is an abuse of the process of the court to bring [the action] against L.B.: the substantial issue raised in it (i.e. the title to the Berlitz shares) has already been decided, on both law and fact, in the first action in circumstances which preclude the parties in this action from attempting to litigate that issue again."
Application: Aston Barrett
"In the opinion of their Lordships it is settled, first, that the admission of a fact fundamental to the decision arrived at cannot be withdrawn and a fresh litigation started, with a view of obtaining another judgment upon a different assumption of fact; secondly, the same principle applies not only to an erroneous admission of a fundamental fact, but to an erroneous assumption as to the legal quality of that fact. Parties are not permitted to bring fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be a proper apprehension by the Court of the legal result either of the construction of the documents or the weight of certain circumstances. If this were permitted litigation would have no end, except where legal ingenuity is exhausted."
i) That he was a party to the 1974 agreement;
ii) That Bob Marley entered into the 1974 agreement as his agent;
iii) That Bob Marley entered into the 1975 agreement as agent for the Barretts;
iv) That Media Aides is trustee of any promise that it made to Island Records;
v) That he is entitled to copyright in any of the disputed compositions;
vi) That his performer's rights have been infringed.
Application: the estate of Carlton Barrett
Estoppel acquiescence and laches
"the more recent cases indicate, in my judgment, that the application of the Ramsden v Dyson … principle – whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial – requires a much broader approach which is directed at ascertaining whether, in particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour."
"However that may be, I am satisfied that Mr Ross was at all material times quite unaware of any activities of the plaintiffs being activities of a kind that he as owner of the copyright in the sound recordings could object to. It did not occur to Mr Ross that he had any right to copyright until it was explained to him about September 1994 that he might be the copyright owner. That being so I do not see how any estoppel can be raised against him or in turn against VCI. I do not see that Mr Ross acted unconscionably in failing to assert a right of which he was unaware."
"Now the doctrine of laches in Courts of Equity is not arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct, done that which might be fairly regarded as a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapses of time and delay are most material."
i) Bob Marley and Don Taylor, whose evidence would be crucial, have died;
ii) Documents have been lost and destroyed;
iii) The recollections of witnesses have faded beyond recall;
iv) Third parties, namely some of Bob Marley's children and Island Logic Ltd, and then 56 Hope Road, have purchased from the Estate the rights to receive the royalties from Island Ltd and Island Inc under the recording agreements for full value and without any knowledge of any claim that the Barretts were contracting parties who were contractually entitled to those royalties or any part of them. They did know that there was a claim to share in those royalties as partners (which was put forward on Carlton's behalf as well as Aston's behalf), and they had an opportunity to explore those claims before they bought the royalty streams; but they had no opportunity to investigate the claim now made because it had never been put forward;
v) No claim to copyright was advanced on behalf of either of the Barrett brothers;
vi) Island Ltd and Island Inc have paid the full amount of the royalties to those whom it has always believed to be contractually entitled to them.
The contract claims
The pleaded case
Was Carlton Barrett party to the 1974 recording agreement?
"The identity of the parties to a contract is fundamental. It is not simply a term or condition of the contract. It goes to the very existence of the contract itself. If it is uncertain, there is no contract. Like the nature and amount of the consideration and the intention to create legal relations it is a question of fact and may be established by evidence. Such evidence is admissible even where the contract is in writing, at least so long as it does not contradict its express terms, and possibly even where it does."
What Mr Barrett said
"He [Bob Marley] depend on me for the music and my brother and I depend on him on the business side."
Island Records' version
"When I first met Bob, besides Aston Barrett, he was with a fellow named Allan Cole who was, I guess, one of Bob's best friends. He was also with a fellow named Lee Jaffe. Both seemed to be very close to Bob. When we had our initial client conference, Bob insisted that Allan Cole and Lee Jaffe sit in on the meeting. Aston Barrett, as I recall, elected not to sit in on the meeting and sat in my reception room."
i) Island Records agreed to treat the 1974 agreement as if it had been signed by the Barrett brothers;
ii) The 1974 agreement was allowed to take effect as an agreement by Bob Marley alone; or
iii) The 1974 agreement never came into force.
i) The Barretts and Bob Marley (with other musicians) recorded Natty Dread at Harry Jay's studios (Standard Condition 3);
ii) The master of Natty Dread was delivered and accepted, so triggering the obligation to pay the advance (Clause 4 (i) (a) and 8);
iii) Deductions were made for recording and other costs incurred before the advance was paid (Standard Condition 9, clause 4 (iii)).
iv) Island came under an obligation to release the album within 3 months of acceptance (clause 7(a)); and released it.
v) The right granted in the side letter with respect to the approval of the album sleeve had either been exercised or time for such exercise had passed on release.
vi) On release, Island assumed an obligation to use its reasonable endeavours to promote the sale of Natty Dread (Standard Condition 6)
"Q. Can I read you the letter because what happens is Don Taylor says: "I would like to make you aware of the fact that Bob Marley's agreement with Carlton and Aston has nothing to do with his agreement with Island Records. In fact, Carlton and Aston are free to work with anyone Bob chooses without causing termination of Bob's financial agreement with Island Records."
A. As I told you, Bob took care of the business, I take care of the music, and there wasn't a problem, my Lord."
Was Bob Marley an agent for the Barrett brothers?
The 1975 agreement
"As I told you, I don't do the business part of the deal. Bob did all of that with Don Taylor and Island." (Emphasis added)
The Media Aides agreement
Trust of a promise?
"[W]here A makes a promise to B for the benefit of C, C can enforce the promise where B has constituted himself a trustee of the promise."
"Accordingly, in my view FX is trustee of Warner's promise to account directly to Third Parties and those Third Parties would be entitled to enforce that promise (joining FX or a successor trustee if necessary) if Warner defaulted in its obligations (which there is no suggestion it will do). This applies both to the monies currently retained by Warner and to any future income flow."
What is the breach of contract alleged?
"The payment of a debt to one of a number of joint creditors discharges a debt owed to them jointly. Similarly, as partnership is founded on agency, payment to one of a number of partners to whom a debt is owed binds them all, even after a dissolution of the partnership: this position holds even where the debtor had notice before payment that the partners had appointed a third person to collect the debts due to the firm, unless there is something in the notice which expressly takes away the right of the one partner to receive the money. Payment of a debt to one of two trustees is a good discharge as to both."
"P rendered services to D under mistake, in circumstances in which D did not know of his mistake. D should be required to make restitution only if P can prove that D has been incontrovertibly benefited by the receipt of the services. D will be incontrovertibly benefited if P can show that he has gained a financial benefit, readily realisable without detriment to himself, or has been saved a necessary expense. In such circumstances the equities of the plaintiff's restitutionary claim are normally more compelling than the defendant's plea that he did not request or freely accept services which he is now in no position to return."
i) Bob Marley and Media Aides were the contracting parties, and Island were entitled and obliged to pay the royalties due to them;
ii) There has never been a breach of any of the recording agreements. Island have paid the party they contracted with, and (since 1992) that party's assignees. Island would have no defence if they stopped paying Bob Marley/Media Aides or now their assignees.
iii) The other partners' remedy is against the estate of Bob Marley for an account and the other remedies which would follow on dissolution of the partnership.
Music making: the general picture
"[W]hen Bob Marley came into the studio to lay down his vocals, he had already created the lyrics and basic melody. He was never instrumental in producing, orchestrating or engineering the song in the studio which was delegated substantially to Aston. Bob had the poetry, Aston and Carly had the music which with Bob's poetry and melodies created the Wailers' sound."
"It was decided to do the two albums because Bob had written a large number of songs and we wanted to record as many as possible."
"It was obvious to me from the very first moment that we were in the studio recording Exodus that Aston was very much in charge of the music. He was the arranger and the musical director and he would play not only bass guitar, guitar, keyboard, additional keyboard, he would be in charge of the recording re-recording and the overdubbing. … Bob would delegate the overall sound to Aston who was clearly in charge, giving orchestrated parts to individual musicians."
"He [Aston Barrett] was a more quiet musician than Bob Marley and he would help to teach Bob Marley how to play guitar and sometimes have control over the melody of songs by the chords that he would choose to play when they were trying to write a song together. I mean, he directed the melody by the chords that he played, and any musician would tell you that if a particular chord is played, you have to follow that chord with the melody. You cannot go anywhere else."
"I remember on some occasions, he [Bob Marley] would say at the end of recording a song, "That's not the song that I wrote, but it sounds great", meaning that it started off in one way and ended up maybe 10 or 20 times better than what he anticipated or expected because we helped to create, alongside with him, something far better than he imagined in the first place."
"I would hum a little thing to him and give him a little pitch and he made a whole circle, you know. These people are really talented people."
"The Barretts gave the Wailers a sound like no other band working in Jamaica at the time: a raw, haunting sound in which Aston's bass served not just as a rhythmic marker but also carried the melody of the song, in the manner of a lead instrument. Carlton's pioneering "one drop" drumming, utilizing the roots sound of Rastafarian ritualistic drum patterns, the music's "heartbeat", gave the Wailers a unique edge over their contemporaries, and their styles were often imitated, but never truly duplicated."
"To write a song Bob might pull together lines and ideas that had come weeks or months apart but he could rely on Aston and Carlton to come up with a rhythm track that pulled it all together and to flesh out the basic but fundamental song elements that Bob provided, of words melodies and harmonies and chord changes into what Bob felt his tunes could be."
"[T]here is no question… that Family Man and Carly were an incredible rhythm section and contributed a lot."
"Q. Mr. Barrett, really in this action the only reason you have claimed that you wrote Rebel Music, and indeed the other songs that have been put forward as being written by yourself and Carlton, is because they are credited to you on these albums, is it not?
A. Miss Jones, my Lord, I am the one who set up the music room, turned it from a music room to a demo studio. I am the musician, the technician, the producer, everything. I am there, I did it. I can recall some things but not everything exactly as it was done, but I am telling you as much as I can recall. It has been a long time."
i) Al Anderson ("[W]hen Bob Marley came into the studio to lay down his vocals, he had already created the lyrics and basic melody");
ii) Mr Steffens ("Bob's manner of composing was to bring the rough idea of a song to the band members, playing it generally as an acoustic number");
iii) Professor Goldman ("Bob Marley's song writing talent leaned towards melody lyrics and chords").
A fraud on Danny Sims?
"The position was that Bob Marley had written these songs and through either agreements with the nominated song writers or through course of conduct, or both, the naming of the other writers was a matter of convenience and that Bob Marley collected and kept during his lifetime the royalties that were owned by these songs as his own and that, as such, the Estate took the position that these were assets of the Estate and not the assets of the individuals."
"At this point in Bob's career he began assigning composer credits on many of his best songs to friends in an attempt to avoid old contractual obligations which he felt robbed him of his proper royalties. All the songs done in this manner required royalties to be paid into an account in the Cayman Islands, which only Bob and manager Don Taylor had access to. "Road Block" was credited to A. Barrett and H. Peart. "Talkin Blues" was credited to Carlton Barrett and Cogil Legon …"
Music making: the documentary evidence
Music making: the specific compositions
"Q. Can I just be clear: who are you saying thought up the new lyrics and melody for Rebel Music, was it Bob or you?
A. Yes, we had been exchanging ideas, yes, myself mostly in a certain area, because we wanted to make an extended version of the original Man To Man.
Q. No, I am not on Man To Man.
A. Oh, Rebel Music I keep forgetting.
Q. We are on ----
A. They done the same time, you know, so I keep chipping back into all of them really."
Who the Cap Fit
"Man to man is so unjust, children:
Ya don't know who to trust.
Your worst enemy could be your best friend,
And your best friend your worse enemy.
Some will eat and drink with you,
Then behind them su-su 'pon you.
Only your friend know your secrets,
So only he could reveal it.
And who the cap fit, let them wear it!
Who the cap fit, let them wear it!
I say I throw me corn, me no call no fowl;
I saying, "Cok-cok-cok, cluk-cluk-cluk."
Some will hate you, pretend they love you now,
Then behind they try to eliminate you.
But who Jah bless, no one curse;
Thank God, we are past the worse.
Hypocrites and parasites
Will come up and take a bite.
And if your night should turn to day,
A lot of people would run away.
And who the stock fit let them wear it!
Who the cap fit let them wear it!
I say I throw me corn,
I say I call no fowl,
I saying "Cok-cok-cok, cluk-cluk-cluk."
Some will eat and drink with you,
Then behind them su-su 'pon you, yeah!
And if night should turn to day, now,
A lot of people would run away!
And who the cap fit, let them wear it!
Who the cap fit, let them wear it!
Throw me corn, me no call no fowl;
Throw me corn; Me no call no fowl
I saying cok cok cok
I say cluk-cluk-cluk"
Rebel Music (3 O'Clock Roadblock)
"Well, maybe the man was there but I can't remember who it was, and am sure anyone who put any input with what we were doing, Bob is there, he take care of the business. Anything he do, Bob say I had written is correct. No one questioned that."
"So Rebel Music is now "I Love Rebel Music", and then we choose a chord with a pitch and Bob go up in a high pitch, and say, "Aaahhh, Rebel Music", and I tape him as usual. I run the tape, and I remember we were coming to a place at the time where there was a road block, and at the time exactly it was three o'clock, and we said, "Three o'clock, road block", and we recut, and somebody said, "And hey, Mr. Cop, ain't got no birth certificate on me", or my passport or my driver's licence and get caught in a road block, would have no ID, no identity, so that is why we say, "We ain't got no birth certificate", you know, a little bit of island Jamaica slang." (Emphasis added)
"Q. [W]ho thought up the basic melody?
A. The melody comes through the jamming and the chords, and we were making it. Like we really have not set an idea, it was there before, we create whatever idea.
Q. Yes, but, Mr. Barrett, who actually created it? I know that there were changes and you all got to a place ----
A. It is coming from me.
Q. From you?
A. Yes, and it coming from me but it can come from Bob too, when it coming from me setting the chords and setting it, so ----
Q. Right, so what did Bob do?
A. He tried to catch on. That is why I ----
Q. I see.
A. ---- he catch onto it."
"is coming from Family Man jamming there with Sledger. That was coming from my brain, the music man who let the thing value what it is today. I did it."
"MR. JUSTICE LEWISON: I wonder if I could ask you this, Mr. Barrett. You just said that Rebel Music came from you and Sledger. Was it the music that came from you and Sledger or the words and the music?
A. The words coming from I and Sledger, but I set the music, the chords, the keyboard, because there was no guitars, no keyboard around, my Lord."
"Bob was writing – well, "3 O'Clock Road Block" was written coming from there. It was at a time when there were lots of road blocks and you had to be careful. … [W]e were driving, it was like three o'clock in the morning, and we just started singing that song, three o'clock road block. And I had my harmonica, I was always playing, and I think Sledger was driving, and I was just playing harmonica and Bob just came out with "three o'clock road block". And we just wrote the song right in the car."
"Well, it first started by making that rhythm what I used to make Talkin Blues, it came up off a old rock steady song in Jamaica called (singing). It go: doo, doo, doo, doo, doo, doo, doom, you know? I have to have a guitar. I go: Bip. But we don't do that. I bring it around a different way and we give it an intro."
Them Belly Full (But We Hungry)
|Track||Date of performance||Nature of performance|
|(1) Want More||Unknown||Live performance|
|(2) Is This Love||March 1978||Sound track only|
|(3) Jammin'||1977||Film performance|
|(4) Could You Be Loved||June 1977||Sound track only|
|(5) No Woman No Cry||June 1977||Live performance|
|(6) Stir It Up||1973||BBC broadcast|
|(7) Get Up Stand Up||June 1977||Live performance|
|(8) Satisfy My Soul||1978||Studio broadcast|
|(9) I Shot the Sheriff||June 1977||Live performance|
|(10) Buffalo Soldier||1983||Sound track only|
|(11) Exodus||June 1977||Live performance|
|(12) One Love||1977||Sound track only|
|Track||Date of performance||Nature of performance|
|Introduction: four edited tracks: Time Will Tell; Some People; Natty Dread; Exodus||Unknown||Sound track only|
|(4) Trench Town Rock||Unknown||Sound track only|
|(5) Concrete Jungle||Unknown||Studio footage|
|(6) Curfew Burnin and Lootin||1974||Studio footage|
|(7) Them Belly Full||1976||Live performance|
|(8) Lion of Judah||1978||Live performance|
|(9) Forever Lovin Jah||1980||Filmed in studio|
|(10) I Shot the Sheriff||1979||Live performance|
|(11) Lively up Yourself||1980||Mixed footage|
|(12) So Much Trouble||1980||Studio recording|
|(13) War||1977||Live performance|
|(14) Revolution||1980||Sound track only|
|(15) Ambush in the Night||1979||Live performance|
|(16) Running Away||1980||Live performance|
|(17) Jammin||1980||Live performance|
|(18) No Woman No Cry||1977||Live performance|
|(19) Take it Easy||Unknown||Video footage (not the Wailers)|
|(20) Could it be Love||1980||Mix of live performance and studio|
|(21) Exodus||1977||Live performance|
|(22) Africa Unite||1977||Live performance|
|(23) Zimbabwe||April 1980||Live performance|
|(26) Natural Mystic||1981||Part video, part live performance|
|(27) Get Up Stand Up||Unknown||Live performance|
"Obviously, I was aware of being filmed whenever we were in a TV studio, such as the BBC. The purpose of attending the studios was to film our performances for broadcast and that is why I did that work. The broadcasts would, of course, promote the albums we were releasing. Where our performances on this DVD were recorded live, I was sometimes aware of this but often not, and even then I thought that the filming was only for the purpose of promoting record sales. Four of the recordings ("Is This Love", "Redemption Song", "Buffalo Soldier" and "One Love") have appeared on the albums I have referred to in this statement. Apart from what may be in the record contracts, other than that, I gave no permission to the use of these tracks by Island Records for the video or for this DVD."
"a couple of times when we came out of a concert after the show, reporting everything, a mobile recorder parked at the side, so whoever comes through the back they don't want to come through the front so they go in the back to see us. They are trying to escape us through the back and we see mobile studios and recorders everywhere. They were taping the show. They were filming it. Mr. Blackwell had planned for us in this time it seems, we're in the future."
"The Legend is recorded when we were doing the Legend tour in that time, I guess. In 84. This is what they make of in the 84 time, so I guess it's released after that. They do some of the filming along the concert."
The copyright claims
"In my view the crucial expression … is "a significant and original contribution to the creation of the work". There are four elements. (1) The claimant must have made a contribution of some sort. (2) It must have been significant. (3) It must have been original. (4) It must have been a contribution to the creation of the musical work. The last point is particularly important….the putative author must have contributed "the right kind of skill and labour". In the present case contributions by the plaintiffs, however significant and skilful, to the performance of the musical works are not the right kind of contributions to give them shares in the copyrights. The contributions need to be to the creation of the musical works, not to the performance or interpretation of them."
"The members of the band (and the session musicians, who cannot be differentiated from the other artists so far as this point is concerned) did what any good musician does: they performed the songs to the best of their considerable abilities, injecting elements of individuality and artistry into their performances. That did not make them joint authors of the songs. In my judgment that remains so even if there were some elements of improvisation in their performances."
"Mr. Morritt [submitted] that the degree of originality required is merely that the manner of expression in permanent form is such that it can be seen to have originated from the arranger, rather than having been copied from the original. To that extent only, he submitted, is the exercise of skill and labour in the production of different quality required. The authorities cited by Mr. Morritt in support of his proposition show plainly that it is correct."
"An author composes a work: the copyright in the original work vests in him. He then licenses another person to arrange or adapt it--for example, to base a film script or a play upon a book. The copyright in the arrangement then vests in the arranger, who has originated it. Normally, of course, the license to make the arrangement or adaptation will carry with it a licence, for example, to perform the adaptation; but theoretically, if it did not do so, a performance of the adaptation could be restrained by the owner of the copyright in the original work as an infringement of that copyright. But it does not of course follow that the owner of the copyright in the original work owns the copyright in the arrangement, for example the films script or play; if that were so, it would lead to the absurd conclusion that the owner of the copyright in the original work, having licensed the adaptation--possibly for a substantial consideration--would be free to exploit the adaptation himself. For these reasons I have no hesitation in rejecting Mr. Bateson's second argument. I therefore decide this question in accordance with the submissions advanced on behalf of Chappells, viz. that all that is required is that the work in question should originate from the arranger or adaptor rather than being a mere copy of another's work."
"It is wrong in principle to single out the notes as uniquely significant for copyright purposes and to proceed to deny copyright to the other elements that make some contribution to the sound of the music when performed, such as performing indications, tempo and performance practice indicators, if they are the product of a person's effort, skill and time, bearing in mind, of course, the "relatively modest" level of the threshold for a work to qualify for protection: see Laddie, Prescott & Vitoria, The Modern Law of Copyright and Designs, 3rd ed (2000), para 3.58. The work of the claimant has sufficient aural and musical significance to attract copyright protection."
"Originality in the context of literary copyright has been said in several well known cases to depend upon the degree of skill, labour and judgment involved in preparing a compilation. … To apply that, however, as a universal test of originality in all copyright cases is not only unwarranted by the context in which the observations were made but palpably erroneous. Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. …There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition."
Who the Cap Fit
"[I]t seems to me that the principle involved is this; that the engagement for reward of a person to produce material of a nature which is capable of being the subject of copyright implies a permission, or consent, or licence in the person giving the engagement to use the material in the manner and for the purpose in which and for which it was contemplated between the parties that it would be used at the time of the engagement.
..[T]he licence accordingly is to be limited to what is in the joint contemplation of the parties at the date of the contract, and does not extend to enable the client to take advantage of a new unexpected profitable opportunity."
Effect of revocation
"I do agree that, because the implied licence for Miss Jones to use the draft opening script was gratuitous, Miss Brighton could revoke it on reasonable notice (subject to possible estoppel arguments, which I will consider below). However, she had not revoked it when Miss Jones rewrote aspects of the 1996 script in 1999. Therefore the creation of the 1999 script was not a breach of Miss Brighton's copyright in the draft opening script. Nor in my view was the making of any contracts by Miss Jones for the exploitation of the 1999 version of the play, as long as the contracts were made before the licence was revoked. It does not make any difference if the contracts continue to operate after the licence has been revoked as long as they were made before then."
The performers' right claims
The scope of the claim
The statutory provisions
"180 (3) the rights conferred by [Part II of CPDA] 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
182. Consent required for recording, etc. of live performance.
(1) A performer's rights are infringed by a person who, without his consent
(a) makes a recording of the whole or any substantial part of a qualifying performance directly from the live performance,
...c) makes a recording of the whole or any substantial part of a qualifying performance directly from a broadcast of, or cable programme including, the live performance.
(3) In an action for infringement of a performer's rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.
182A. Consent required for copying of recording.
(1) A performer's rights are infringed by a person who, without his consent, makes, otherwise than for his private and domestic use, a copy of a recording of the whole or any substantial part of a qualifying performance.
(2) It is immaterial whether the copy is made directly or indirectly.
182B. Consent required for issue of copies to public.
(1) A performer's rights are infringed by a person who, without his consent, issues to the public copies of a recording of the whole or any substantial part of a qualifying performance."
"This Directive shall, without prejudice to paragraph 3 and subject to paragraphs 8 and 9, not affect any contracts concluded before the date of its adoption."
"(1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before 19th November 1992.
(2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right."
"Consent required for recording or live transmission of performance
182. – (1) A performer's rights are infringed by a person who, without his consent –
(a) makes, otherwise than for private and domestic use, a recording of the whole or any substantial part of a qualifying performance, or
(b) broadcasts live, or includes in a cable programme service, the whole or any substantial part of a qualifying performance.
(2) In an action for infringement of a performer's rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given."
A new right?
In this part "new right" means a right arising by virtue of these Regulations, in relation to a … qualifying performance, to authorise or prohibit an act.
The expression does not include:
(a) a right corresponding to a right which existed immediately before commencement…"
i) The original section 182 right was a personal right, which was not assignable. The section 182A right is a property interest;
ii) Consent for the purposes of the original section 182 right could be granted by the Copyright Tribunal, where the performer had unreasonably refused consent. Consent for the purposes of 182A gives the performer an absolute right to refuse consent;
iii) It was a defence to a claim for damages for infringement of the original section 182 right that the alleged infringer believed, on reasonable ground, that consent had been given, even if it had not. No such defence is available in relation to a claim for infringement of section 182A.
Consent to what?
"It may well be, as the authors [Laddie Prescott & Vitoria on Copyright] observe in the same paragraph, that Mervyn Davies J's decision may be justified on the basis that the performer who gives his consent to the making of a studio recording impliedly consents to the making of records from it for a subsequent issue to the public. However, in the absence of any such authority, whether express or implied, the making of a record to my mind clearly infringes a performer's rights. Indeed, it would largely defeat the rights conferred by the Act on a performer if, having once consented to the making of a recording, albeit on terms that records were not to be released unless the performer was satisfied with the recording, the recording could be exploited by the making of records from it and by the sale of the records by a third party into whose hands the recording had come and who could not be restrained by any contractual right from the exploitation of it."
Prior arrangements or agreements
Was there no consent?