7 Rolls Buildings Fetter Lane London EC4A 1NL |
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B e f o r e :
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JODIE HENDERSON |
Claimant |
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- and - |
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ALL AROUND THE WORLD RECORDINGS LIMITED |
Defendant |
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- and - |
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2NV RECORDS LIMITED |
Third Party |
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Gwilym Harbottle (instructed by Anthony Jayes LLP) for the Defendant
The Third Party did not appear and was not represented
Hearing dates: 23rd, 24th January 2013
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Crown Copyright ©
Judge Birss :
The proceedings
The witnesses
The law
182A Consent required for copying of recording
(1) A performer's rights are infringed by a person who, without his consent, makes a copy of a recording of the whole or any substantial part of a qualifying performance.
(1A) In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.
(2) It is immaterial whether the copy is made directly or indirectly
(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in this Chapter as "reproduction right".
"It would be astounding, it seems to me, that anyone would have consciously given consent on her behalf without at least enquiring whether any payment was proposed and what the expected profit from exploitation was likely to be."
"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 of 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."
Assessment
2005
Early 2007
mid 2007
All Around the World
Autumn 2007
Events after launch on 12th November 2007
Estoppel
Pozer
6. RELEASE COMMITMENT
(a) We agree to procure the bona fide commercial release (which if limited to digital formats shall mean making the recording available on such digital retail/streaming sites from time to time used by AATW (including but not limited to i-Tunes) and such sites customarily supplied by Universal Music Operations from time to time) of the Masters constituting the said Minimum Product Commitment in the United Kingdom within one hundred and eighty (180) days (one hundred and twenty (120) days in the case of any Single) following delivery of the same. Any such release must be supported by a bona fide promotion and marketing in order to qualify as a release under this clause.
(b) We agree to use our reasonable endeavours to procure the release (as described above) in the Major Markets of the Masters constituting the said Minimum Product Commitment within ninety (90) days following release of the same in the United Kingdom.
(c) In the event that we have not released the relevant Masters in accordance with the above provisions of sub-clause (a) above you shall be entitled to give us written notice requiring us so to do and in the event that we have no released the said Masters within ninety (90) days following our receipt of written notice from you, you shall (provided that we shall not have commenced making Masters been paid an advance in respect of any subsequent Period) be entitled to terminate the Term of this agreement forthwith by notice in writing. Further in the event of such failure to release the Masters and provided that you shall secure a release for us of any of our obligations to make payment of monies to producers and/or artists and/or any other third parties you shall also be entitled to purchase from us within three (3) months of the date of termination the rights in the said Masters for such countries in which release has not been effected upon reimbursement to us of any and all Recording Costs which we have paid in respect of such unreleased Masters and we shall re-assign to you all relevant rights (including the copyright) immediately on receipt of such monies. Your entitlement to purchase the rights in the Masters shall be your sole remedy.
(d) In the event that we have not released the relevant Masters (in accordance with the above provisions of sub-clause (b) above) you shall be entitled to give us written notice requiring us so to do and in the event that we have not released the said Masters within ninety (90) days following our receipt of written notice from you your sole remedy shall be to require us at any time thereafter to license such Masters to any third party of your choice provided that the terms of such licence are reasonably satisfactory to us and provide for sufficient royalties to pay to you your royalty hereunder and any third party royalty of not less than four per cent (4%) remaining for us.
Conclusion