Owner – Rights – Performance rights and sound recordings
Henderson v All Around the World Recordings Ltd: Patents County Court: 28 March 2013
Section 180 of the Copyright Designs and Patents Act 1988 (the 1988 act), so far as material, provides: '(1) [Chapter 2 of this Part (economic rights)] confers rights (a) on a performer, by requiring his consent to the exploitation of his performances (see sections 181 to 184), and (b) on a person having recording rights in relation to a performance, in relation to recordings made without his consent or that of the performer (see sections 185 to 188), and creates offences in relation to dealing with or using illicit recordings and certain other related acts (see sections 198 and 201)'.
Section 182A of the 1988 act, so far as material, provides: '(1) A performer's rights are infringed by a person who, without his consent, makes... a copy of a recording of the whole or any substantial part of a qualifying performance'. The claimant, H, was a singer, songwriter and musician. The defendant was a recording company. In 2004, when she was about 14 years old, H composed the lyrics for a song called 'Heartbroken'. H subsequently issued a claim in the Patents County Court against the defendant alleging the infringement of copyright and performer's right in Heartbroken by the defendant.
In respect of the latter, H contended that the defendant had infringed her performer's rights by copying a recording of her performance and issuing copies of the recording to the public. The claim for copyright infringement was not pursued. The defendant contended that, at all times, it had acted pursuant to the contract with another company, 2NV, and that it had acquired the rights to do what it had as a result of that contract. The defendant further contended that H knew all about that; and that they released Heartbroken with her acquiescence, approval, encouragement and support. The defendant relied on its dealings with H, including her participation in a video, her permission to use her image on the single and her performances of Heartbroken in support of the release amongst other things.
The issue for consideration was whether the defendant had infringed H's performer's rights. Consideration was given to the Copyright Designs and Patents Act 1988, in particular to sections 180, 182 and 182A.
The court ruled: a performer had economic rights and moral rights relating to their performance. The economic rights gave the performer the right to require her consent to the exploitation of her performances (section 180(1)(a) of the 1988 act). The moral rights included a right to be identified. A performer's consent was required to make a recording of her live performance, assuming other criteria were satisfied. That right was one of a performer's so called 'non-property' rights, because it was not really assignable or transmissible at all, only on death. A performer also had other economic rights relating to a recording of her live performance, including a reproduction right (section 182A), a distribution right (section 182B), a rental and lending right (section 182C) and a right to make copies available to the public (section 182CA). Those were defined as a performer's property rights (see - of the judgment).
On the facts, the release of Heartbroken by the defendant, by copying the recording of her performance and issuing copies of the recording to the public was an infringement of H's performer's rights (see ,  of the judgment). The defendant had infringed H's performer's rights (see  of the judgment). Redwood Music Ltd v Chappell & Co Ltd  RPC 109 considered; Mad Hat Music v Pulse 8 Records Ltd  EMLR 172 considered; Bassey v Icon Entertainment  EMLR 596 considered; Barrett v Universal Island Records  All ER (D) 214 (May) considered.
Chris Pearson (instructed by Fladgate LLP) for H; Gwilym Harbottle (instructed by Anthony Jayes LLP) for the defendant.