The High Court has granted a company owned by the family of the late Jimi Hendrix an injunction to prevent further exploitation of old master tapes in breach of a 1973 consent order but declined to order damages.
Jimi Hendrix signed an exclusive recording agreement with PPX in 1965. In 1967 PPX’s owner and president Mr Chalpin sued Jimi Hendrix in relation to recordings released by Jimi Hendrix and his group “The Jimi Hendrix Experience”. The proceedings were settled on the basis of a consent order in 1973 under which PPX and Mr Chalpin agreed not to exploit a number of master tapes and to deliver the master tapes up to Jimi Hendrix’s estate.
Experience Hendrix, the claimant in these proceedings, is a company owned and controlled by the family of the late Jimi Hendrix and is the successor in title to his estate. The claimant alleged that PPX and Mr Chalpin had licensed a number of recordings in breach of the 1973 consent order.
The claim succeeded and Mr Justice Buckley granted a permanent injunction preventing the further exploitation of the master tapes by PPX and Mr Chalpin.
The case is notable for the following reasons.
- Delay can be fatal in a claim for equitable remedies such as a permanent injunction. Mr Justice Buckley found on the facts that it was acceptable that Experience Hendrix should seek to prevent further exploitation contrary to the 1973 consent order despite the fact that Jimi Hendrix’ estate had failed to act in the years since the order. The estate’s failure to act previously appears to have been due to its belief that litigation was not in its best interests and to its perception that the recordings licensed by PPX were not a real threat to the estate’s releases.
- An injunction was also granted against Mr Edward Chalpin personally as he was a party to the 1973 consent order and was clearly the moving force behind PPX.
- Experience Hendrix’s and the Hendrix estate’s previous indifference to the delivery up of the master tapes and their undue delay did however lead the judge to refuse to grant an order for delivery up of the master tapes. Delivery up is also an equitable remedy.
- Experience Hendrix asked for damages to be assessed on either a compensatory basis or on the basis of an assessment of the profit made by PPX from its licensing of the master tapes.
The judge declined to order an assessment of damages on either basis as he said it was clear from the evidence that Experience Hendrix would never have agreed to PPX’s exploitation of the poor quality recordings. He added that the evidence as a whole demonstrated that an assessment of damages on the basis of what a hypothetical party might have paid Experience Hendrix for the right to exploit the master tapes would be a wholly fictional approach.
The decision shows that delay need not necessarily be a bar to obtaining a permanent injunction. Each case will depend on its own facts. A claim for a permanent injunction should be distinguished from an application for an interim injunction (ie a temporary injunction granted pending a final trial of the claim) where delay is usually fatal. The decision also emphasises the importance of putting persuasive evidence before the court in relation to damages.