18 November 2013

The distribution and copyright in the works of the late vocalist Eva Cassidy was at the centre of a recent dispute in the High Court in Straw & Anors v Jennings Ors [2013] EWHC 3290 (Ch).

The Claimants (Straw) owned the worldwide distribution rights of Cassidy's catalogue. They entered into an oral joint venture agreement with the Defendants to distribute the recordings in certain territories including the UK and Australia. Unfortunately, the oral agreement did not specify all the key terms of the contract leaving the parties in an acrimonious argument about what was intended. The Court had to be asked to determine the proper way in which the profits and losses arising from the commercial exploitation of Cassidy's work were to be shared between them because they had failed to record their agreement sufficiently clearly to start with.

More interestingly from an intellectual property perspective, Jennings tried to argue that they had come to jointly own copyright in the recordings because of their involvement in the compilation and sequencing of Cassidy's songs into albums  i.e. they had obtained a legal interest as part of assisting the copyright owners to package up the songs. Jennings then argued that continued reproduction and distribution of copies of the works by Straw infringed those rights.

Upon consideration of all of the evidence, the Judge found that:

  • Jennings had not established co-ownership rights in relation to the compilation and sequencing of the albums.  This was the case even in respect of albums for which Jennings was given a joint credit.
  • It was very much Straw who was in control of, and the ultimate decision maker, in relation to the selection and ordering of tracks.
  • Straw consulted many people, including Jennings, but their input was not such as to give rise to any copyright ownership and in the end it was Straw who 'called the shots'.
  • This was separate from and not inconsistent with the nature of the joint venture whereby profits were shared equally.
  • The fact that Jennings' UK territory turned out to be the highly successful market was irrelevant for these purposes.

The judge also commented as an aside that even if copyright been established, an implied licence for the continued use of the copyrighted works by Straw would not have ended with the termination of the joint venture and therefore, even in these circumstances, there would have been no infringement. In any event, it was difficult to see what loss Jennings might have suffered as a result of any alleged infringement or what compensatory award they might be entitled to. The judge observed, rather scathingly, that this argument about copyright seemed to be a tactical manoeuvre by the defendants which was bordering on an abuse of the Court's process.

Nonetheless, owners of copyright who wish to exploit that copyright commercially need to be careful about others gaining a share of ownership by participating in a preparation or marketing role. Clear terms and contracts for distribution should be entered, in writing, to avoid costly litigation of this sort.

This article was written by Hannah Braye.

Key contact

Jeremy Dickerson

Jeremy Dickerson Partner

  • Head of International 
  • Head of Intellectual Property, Media and Sport
  • Defamation and Reputation Management

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