This Court of Appeal case concerned the rights in performances by Jimi Hendrix contained on live recordings made in the late 60s in the UK, Sweden and the US.
The judges in the initial trial and in an earlier related trial found that Hendrix’s estate, Experience Hendrix, could enforce rights in the performances so as to prevent sales by Purple Haze Records (“Purple Haze”) and its de facto owner Lawrence Miller (who was representing himself and Purple Haze in the proceedings) of CDs containing live recordings made under licence from John Hillman.
Purple Haze, Mr Miller and Mr Hillman argued that Experience Hendrix was not entitled to enforce the rights because:
- The Copyright, Designs and Patents Act 1988 (“the Act”) created rights in performances for performers who were alive on the date that the Act came into force in respect of performances which predated the Act, and it took away pre-existing similar rights for performers who died before the Act came into force. Since Hendrix died before the Act came into force, Hendrix and his estate had no performer’s rights to invoke.
- The Act did not confer performer’s rights on the personal representatives of performers who died before the Act came into force or, if it did, it would be impractical for potential exploiters to have to obtain the necessary consents where the estate had been wound up.
- To be capable of being protected under the Act, the performance must either (a) have taken place in a country that was a “qualifying country” at the time of the performance, which was not the case with the performances rendered in Sweden and the US, or (b) have been given by a resident of a qualifying country at the time of the performance, and Hendrix was a US citizen.
All three appeal court judges agreed that the Act, before and after its amendment by the Duration of Copyright and Rights of Performance Regulations 1995 and the Copyright and Related Rights Regulations 1996, protected the economic interests of performers and their estates, regardless of whether the performers were alive or dead at the time the Act came into force. They came to this conclusion based on the wording of the Act, by reference to previous legislation, prior case law (which conferred civil performer’s rights on performers and their personal representatives) and international copyright treaties and agreements which required the UK to pass laws granting such protection.
The judges rejected the impracticality argument for several reasons. The position before the commencement of the Act was the same so the problem already existed and, if no-one could be found to ask for clearance, the Act specifically provides that this can be granted by the Copyright Tribunal.
All three disagreed with the “qualifying countries” point. No country was a “qualifying country” before the Act came into force apart from the UK and the members at that time of the European Economic Community. So if the country had to be a “qualifying country” at the date of the performance then the provisions in the Act relating to pre-commencement performances would be of no effect for all other countries forever. This could not have been the intention of Parliament when the Act was passed. Also, Hillman’s interpretation of the meaning of “qualifying country” would put the UK in breach of relevant international treaties and agreements. Both the US and Sweden had become qualifying countries by the time the infringement took place and the judges found that this was enough.
In dismissing the appeal they also agreed that the judge in the initial trial had been right to find, on the evidence, that Purple Haze, Miller and Hillman had “no real prospect of defending the claim“.
This case underlines the importance to record companies and other exploiters of recordings of carrying out proper due diligence and the need to consider related rights such as rights in performances as well as copyright during this process. It also highlights the need to consider carefully EU law and the provisions of related international treaties and agreements when investigating potential ambiguities in UK legislation as these clearly have a bearing on interpretation.