Ludlow Music Ltd v Williams & Others (No.2)
Reference:  EWHC 638 (Ch);  FSR 868
Court: Chancery Division
Judge: Pumfrey J
Date of judgment: 14 Feb 2002
Summary: Intellectual property - Copyright - Song lyrics - Infringement -Remedies - Damages - Additional damages - Copyright, Designs and Patents Act 1988, s.97(2) - Injunction
Instructing Solicitors: Sheridans for the Claimant. Harbottle & Lewis for the Defendants.
The Claimant was a music publisher. The First Defendant was the well-known singer and songwriter. Co-defendants were the First Defendant’s co-writer Guy Chambers and their respective publishers. Substantial part of lyrics of the song “I am the Way” used (sampled) in “Jesus in a Camper Van”. The Claimant had been aware of the release of the song (on the First Defendant’s second album), had been in negotiations for a licence but had taken no steps to stop it and instead asked for an account of all monies made from it. The Defendants registered a 25% interest in the song with the relevant collecting societies, which was equivalent to a 50% interest in the lyrics. Summary judgment ordered on infringement but issues ordered to be tried, particularly whether or not the Claimant was entitled to injunctive relief or should get damages instead. The Claimant sought an injunction and damages at the rate of 50% of all royalties earned from the infringing work.
(i) Whether the Claimant was entitled to a final injunction;
(ii) The level of damages to be awarded to the Claimant on account of the infringement;
(iii) Whether additional damages should be awarded; and if so (iv) How much.
An injunction against future exploitations of the work was granted. There was no reason why a new track should not be substituted and no relevant delay. Such an injunction would not be oppressive. The principles in General Tire v Firestone  1 WLR 819 were relevant here. A royalty or profit share was the proper basis for damages, measured on the basis of a transaction between willing parties. A 25% interest in the song was the right amount. The decision of the House of Lords in Redrow Homes v Betts Brothers  2 WLR 198 did not exclude the possibility that an award of damages under s.97(2) Copyright, Designs and Patents Act 1988 might include a restitutionary element. EMI did knowingly infringe the Claimant’s copyright in allowing the CD containing the infringing song to be pressed but it was not a cynical decision, rather one made in the expectation that an agreement would be reached. There was no basis for an award of additional damages in this case.
The case shows how difficult it is for an infringer to establish that no injunction should be granted, even where money might be an adequate remedy. The decision of Jacob J in Banks v EMI Songs Ltd (No.2)  EMLR 452 is not a charter for infringers to fix copyright owners with damages equal to a licence fee.