Full case report
Experience Hendrix LLC v Purple Haze Records Ltd & Others
Reference  EWHC 249 (Ch);  EMLR 417
Court Chancery Division
Judge Hart J
Date of Judgment 24 Feb 2005
Copyright – CDPA 1988, ss.181, 206 – ‘Qualifying performance’ – Retrospective legislation – Rights of co-performers – Contractual assignment of rights – ‘Controlling mind’ of a company
On 9 January 1969 Jimi Hendrix and two other musicians performing as “The Jimi Hendrix Experience” gave two performances in Stockholm. A sound recording and/or film and sound recording of them was made by a Swedish broadcasting organisation. In 1970 Hendrix died intestate. In 1989, the provisions of the CDPA 1988 came into force, giving performers rights, including retrospective rights, against the unauthorised exploitation of “qualifying performances”. In 2000, Hendrix’s English Administrator transferred to Experience Hendrix the whole of Hendrix’s estate under a deed of assignment and assent. Purple Haze sold copies of the recordings of the Stockholm performances. Experience Hendrix sued Purple Haze, claiming that the performances were “qualifying performances” under the CDPA, and Miller on the basis that he was the controlling mind of Purple Haze. It applied for summary judgment against both.
The main issues were:
(1) Whether, as Sweden was not a member of the EEC at the time of the performances, the performances were “qualifying performances” for the purposes of the CDPA;
(2) Whether, as the performances were by two other performers in addition to Jimi Hendrix, Experience Hendrix alone could assert rights over them;
(3) Whether a management agreement entered into by Hendrix in 1966 assigned his rights in the performances thus preventing the Estate from asserting these rights;
(4) Whether Miller’s position in Purple Haze made him personally liable.
Granting summary judgment against both defendants:
(1) The performances were “qualifying performances”. If the provisions were intended to have retrospective effect, which they plainly were, then the fact that Sweden was not a member of the EEC at the time of the performances was not relevant.
(2) The proposition that an individual who participated in a group performance did not enjoy, in his own individual right, performer’s rights under the CDPA was not sustainable.
(3) The management agreement relied upon, on its true construction, contained no assignment of, or agreement
to assign, the relevant rights, and it was unnecessary to imply a term to that effect to give the agreement business
(4) The evidence showed Miller to be the controlling mind of Purple Haze, and so liable under the principles identified in MCA Records Inc. v. Charly Records  EMLR 1.
This case contains an interesting and thorough review of the performers rights provisions in the CDPA 1988 and Copyright and Related Rights Regulations 1996. Given that this was a summary judgment application, the relatively short shrift given to the potentially complex contractual arguments raised by the Defendants may be viewed as surprising; likewise the judge’s acceptance of the Claimant’s case as to ‘controlling mind’ despite a lack of direct evidence, simply on the basis that the Defendants did not admit it in their pleading and did not challenge it.
Eversheds for the Claimant; Mr Clive Sutton for the Defendants
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.