Get up, stand up, stand up for your (intellectual property) rights

In the latest twist in the battle over 13 Bob Marley songs, including the famous ‘No Woman, No Cry’, the Court of Appeal has handed down a judgment dealing with copyright ownership of those works. The case involved the interpretation of contracts, the extent to which the contracting parties’ intentions matter and what forms part of the ‘factual matrix’.

The background to this dispute, the Court’s decision and our take on what it means is set out below. The full case can be accessed here.

Background

Bob Marley was signed as a recording artist with a number of different entities during the course of his career. During the 1970s, when he wrote the 13 songs the subject of this dispute, he was (reportedly) unhappy with the arrangements he had with those entities because he was (he said) not being fairly compensated for his work. As a consequence, he misattributed 13 songs – including the famous song ‘No Woman, No Cry’ – to other artists as a way of gaining remuneration from them. The court called this the “Misattribution Ploy”.

In 1981 he died intestate.  At that point, Chris Blackwell (founder of the record and publishing company Island & other companies in the group) took steps to try to preserve his legacy. One of the things he did was to arrange for Island Logic Ltd (“ILL”) to enter into an agreement with Cayman Music Inc (“CMI”) in 1992 to acquire the rights in a number of Marley’s works.  It did not mention the misattributed songs specifically.

Subsequently, BSI Enterprises Limited (“BSI”) entered into an agreement whereby it purported to buy and licence back to CMI the copyright in the misattributed songs, on the basis that the 1992 agreement had not assigned that copyright to ILL.  BSI and CMI then brought proceedings against Blue Mountain Music Limited, a company that had been receiving royalty collection society payment in relation to these songs, demanding that these royalties be paid over to them.

Therefore the key issue in those proceedings was whether or not CMI’s interest in those songs had passed to ILL under the 1992 agreement.

The High Court Proceedings

In 2014, the High Court refused BSI and CMI’s application for a declaration that pursuant to the 2008 agreement, copyright in the misattributed songs vested in BSI and that CMI was the licensee. It decided that the 1992 agreement did assign the copyright to ILL, because – amongst other things – the definitions of “Compositions” and “Catalogue” referred to all existing musical compositions written by Marley and it would have made no sense for the parties to agree not to include the misattributed songs.

The Appeal

BSI and CMI appealed but the Court of Appeal refused to allow it. A summary of the appellants’ main arguments, and the Court’s reasons for rejecting those arguments, included the following:

1. Argument: the “Preliminary Statement” in the 1992 agreement that ILL wished to purchase and CMI wished to sell “certain” publishing interests indicated that only some of CMI’s publishing interests were to be transferred under the agreement.

The Court’s response: the appellants sought to attach far more weight to the word “certain” than it could possibly bear. It could simply mean that the extent of the assets being sold was to be determined by reference to the terms of the agreement.

2. Argument: Clause 2.1 provided for the transfer of the “Acquired Assets”, which were defined in clause 1.1 as including “Compositions”. However, the term “Compositions” was not defined in clause 1.1 and clause 1.8 only defined the term “Catalogue”. While the terms “Composition” and “Catalogue” appeared in the heading to clause 1.8, this heading had to be disregarded pursuant to clause 16.7, which provided that “….The Article and Section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.”

The Court’s response: the term “Compositions” was defined in the 1992 agreement. The words “Composition” and “Catalogue” in clause 1.8 did not have to be disregarded pursuant to clause 16.7 because, appearing at they did at the head of clause 1.8, they identified the particular terms defined in the clause. In any event, the words in the middle of clause 1.8 “individually a ‘Composition’ or collectively the ‘Compositions'” clearly signified that all of the works identified in the preceding words, including specifically musical compositions written and recorded by Bob Marley, were indeed “Compositions” for the purposes of the agreement.

3. Argument: the High Court had made an error in insisting that the language of the 1992 agreement had to accommodate ILL’s stated commercial objective to obtain as many rights in Bob Marley’s creative output as possible.

The Court’s response: that was not an error. The judge had directed himself entirely properly as to the relevant principles of contractual construction. He had emphasised that the intention of the parties was to be determined objectively and that the meaning of the agreement was to be determined from the document itself having due regard to the factual matrix, which he had fairly and properly elaborated.

Comment

The lesson here is that words used in a contract are far more likely to be given their ordinary meaning than be reinterpreted so as to mean something different. It is therefore important to ensure that contracts generally, and copyright assignments in particular, are drafted with care so that important terms are clearly and correctly defined.