What was the issue?
The song "Heartbroken" by British Producer T2 was released in 2007 featuring vocal recordings from Jodie Henderson known as Jodie Aysha (her stage name) through the record company All Around the World Recordings. Upon its release the track peaked at number 2 in the UK singles chart where it stayed for five weeks. It remained in the top 40 for 46 weeks.
Ms Henderson recorded the track whilst visiting the producer T2 otherwise known as Tafazwa Tawinezvi in 2005 however the terms in respect of how the recording would be used were in dispute.
T2 subsequently signed to 2NV. Ms Henderson was offered a fee of £1,500 for her performance by 2NV but rejected this. 2NV then provided the track to All Around the Word Recordings, who released it.
Ms Henderson claimed that her consent was not given for the use of her vocal performance on the release. She received no record royalties for All Around the World Recording's release nor was she paid for her participation in the video, (which she said was filmed under protest) or for the use of her name on the record art work. Consequently Ms Henderson brought a claim against All Around the World Recordings for infringement of her performance rights.
What are performers rights?
Under the Copyright Designs and Patents Act 1988 a performer is granted certain economic rights and moral rights in respect of their performance. A performer is also entitled to equitable remuneration in respect of the exploitation of recordings of their performance.
A performer's consent is required to make a recording of a live performance (which also includes a performance in a recording studio) and to exploit such performances. A performer also has various assignable property rights in relation to that recording of their performance including the right to copy that recording, to distribute that recording, to rent or lend that recording to the public or to make copies of that recording available to the public.
The Act does not state that consent of a performer must be given in writing however it is good practice to obtain written consent so that there can be no argument as to the terms upon which consent was provided.
The matter was heard by the Intellectual Property Enterprise Court which held that All Around the World Recordings had infringed Ms Henderson's performer's rights when copies of her performance were made and issued to the public without her consent. The court found that All Around the World Recordings, had known that Miss Henderson had not signed to 2NV and had not obtained consent directly therefore, they had known that she had not provided consent to either label to release the record. The court held that the fact that Miss Henderson had reluctantly appeared in a subsequent video for the track and entered into discussions about the release did not mean that she consented to the release before any terms of payment to her had been agreed.
As a result of this finding Ms Henderson elected for an enquiry as to damages.
What was the outcome?
The Court at an enquiry as to damages in October 2014, applied damages under the Directive on the Enforcement of Intellectual Property rights (2004/48/EC) ('the Directive'). Article 13 states that where an infringer knowingly or with reasonable grounds to know engages in infringing activities then the damages awarded should be either :
- appropriate to the actual prejudice suffered by the claimant due to the infringement, taking into account lost profits suffered by the injured party, unfair profits made by the infringer and if appropriate moral prejudice caused to the claimant; or
- on the basis of the royalties and fees which would have been due if the infringer had obtained a licence to use the IP right in question, often referred to as the user principle
Article 13 has been implemented by regulation 3 of the IP (Enforcement) Regulations 2006 in the UK.
Ms Henderson was awarded damages of £30,000 based on the 6% royalties which the court considered would have been agreed between her and All Around the World Recordings, plus a further £5,000 relating to her loss of reputation for not being able to promote her name, which provided unfair profit to All Around the World Recordings as she was not compensated by it for her loss of promotion of her name on the release.
This case is important as the judge clarified how the Directive should be applied and also considered unfair profits and moral prejudice which had not been considered in UK law before. The latter might occur when a claimant has suffered little or no financial loss and would not otherwise be compensated.
This case further clarified that a claimant retains the right to elect between an enquiry as to damages or an account of profits, it cannot do both.
What lessons can be learnt from this case?
Although not a legal requirement, when working with a singer, musician or other performer it is prudent to put a written performer's consent agreement in place which is signed by the performer. A well drafted performer's consent form will clearly set out what consent has been provided and the terms upon which such consent is given. This will provide protection for both the performer and the rights holder.
How can we help?
For advice on all performers' rights issues, drafting of performer's consent forms or advice on copyright or any other music agreements including recording, publishing, management and producer agreements please contact Carol Isherwood: [email protected] or 03700 865882.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.