Case Summary: British Rights in Live Concert Recordings

Experience Hendrix, the Seattle-based company that owns the intellectual property rights of Jimi Hendrix, sued Purple Haze Records and Lawrence Miller in London for infringement of performer's rights.

Fans can't seem to get enough of Jimi Hendrix performances, and companies continue to try to meet that demand.

Last year, U.K.-based indie label Purple Haze Records Ltd. released a CD of a 1969 concert by the Jimi Hendrix Experience in Stockholm. The company said it received rights to the music from John Hillman, a Bahamian lawyer who claimed to have set up and run Yameta Co. Ltd. -- an entity that in 1966 entered into a management agreement with Jimi Hendrix.

Experience Hendrix, the Seattle-based company that owns the intellectual property rights of Jimi Hendrix, sued Purple Haze Records and Lawrence Miller in London for infringement of performer's rights. In granting Experience Hendrix a summary judgment, the High Court of Justice, Chancery Division, wrote an extensive opinion detailing the history of this right in the United Kingdom.

The following is a summary of the court's opinion.

THE CONTRACT: The 1969 concert at the Konserthuset in Stockholm was recorded by a Swedish broadcasting organization. There was an agreement between Jimi Hendrix, referred to as the "performer," and Bahamian company Yameta Co. Ltd., referred to as the "manager," signed by John Hillman.

Whether the agreement was in effect at the time of the concert was in dispute. Even if it were in effect, the court determined it did not grant rights to recordings of the concert.

The court's opinion quotes what it refers to as the material provisions of this agreement.

Like typical management contracts, this agreement -- governed by Bahamian law -- required the manager to use its "best endeavours" in the promotion and furtherance of the career and interest of Hendrix, and in procuring suitable employment for him in every branch and form of the entertainment industry.

Unlike today's management contracts -- and more like production deals -- Hendrix agreed to render his exclusive services in the entertainment industry to the manager. This included theater, television, broadcasting, personal appearances, recording, songwriting and publishing for four years.

Moreover, during this time, Hendrix was entitled to take only four consecutive weeks of vacation, in addition to U.K. public holidays, at a time that was approved by the manager. Hendrix was also required to rehearse "as the manager shall think fit," provide himself with suitable music and instruments, to dress at all times in a "befitting manner" and to conduct himself "soberly."

While the provisions include compensation to the manager and agent, they do not include compensation or payment to Hendrix for providing his exclusive services. The manager was to receive 40% of all gross earnings made to Hendrix, excluding any payments made for "recording royalties or publishing under the control of the manager."

Purple Haze Records claimed that Hendrix had committed himself to Yameta. Therefore, Yameta was entitled either in law or equity to all rights in the performances of Hendrix, which would include all copyrights created during the contract period.

The court stated that "Jimi Hendrix in a sense delivered himself 'body and soul' to Yameta" for the duration of the contract. But the purpose of the agreement, the court wrote, was to entitle Yameta to fulfill its contractual role and duty of promoting and furthering his career and interest. Yameta did not obtain intellectual property rights under the agreement; it obtained the right to receive a commission.

The contract was broad enough for Yameta to require Hendrix to enter certain deals, such as recording contracts, and to permit Yameta to enter contracts on behalf of Hendrix, the court wrote. It did not, however, entitle Yameta to sell the services of Hendrix to third parties "and pocket 100% of the proceeds for itself." Yameta was not his employer.

As a result, the Yameta agreement did not permit the company -- or any assignee -- the right to make a copy of the Stockholm performances.

RIGHTS IN PERFORMANCES: In 1969 in the U.K., the only protection for performers against unauthorized exploitation of their performances was under criminal law. Therefore, performers had no right to sue others for use of their performances -- subject to one qualification that the court stated was not relevant to this case (set forth in the case of Rickless v. United Artists Corp. 1988).

The 1988 Act: The private law right and remedy began on Aug. 1, 1989, when the Copyright Designs and Patents Act 1988 went into effect.

Under Part II of that Act, a performer's consent was required to exploit performances. As for recordings of performances, either the performer's consent or that of the person having recording rights was required to exploit the recordings.

The court noted that these rights were "quite separate" from copyright. The Act stated that the rights are "independent of any copyright in, or moral rights relating to, any work performed or any film or sound recording of, or broadcast or cable programme including, the performance."

While performances taking place before 1989 were protected, activities that would otherwise be infringing were not wrongful unless they occurred after the Act went into effect. Therefore, this Act protected performances in the 1960s.

The rights -- for certain "qualifying performances" -- could not be assigned. Upon death of the performer, however, they would pass according to the performer's will or to his personal representative if there were no will.

The 1996 Act: These provisions were substantially amended and expanded by the Copyright and Related Rights Regulations 1996, which went into effect on Dec. 1, 1996.

Under this Act, a performer's rights are infringed by: (1) a direct recording or live broadcast of a qualifying performance without the performer's consent; (2) making a copy of a recording of a qualifying performance; (3) issuing to the public copies of a recording of a qualifying performance without the performer's consent; (4) renting or lending a copy of the qualifying performance without permission; and (5) playing in public or broadcasting the qualifying performance without consent.

A qualifying performance is defined as one given by a qualifying individual (a citizen or individual resident of a qualifying country) or one that takes place in a qualifying country, which is the United Kingdom, another member state of the European Economic Community or a country designated as enjoying reciprocal protection.

These rights are designated as "property rights" that may be assigned or disposed of by will or by operation of law as "personal or moveable property." In addition, there can be no assignment unless it is made in writing and signed by the assignor.

Specifically applicable to the Hendrix case, the court noted that these regulations applied to copyright works "and to performances" given before or after the date the regulations went into effect. However, they have no affect on the terms of prior written agreements.

The court held that the 1969 concert included qualifying performances because they occurred in Sweden, even though that country did not become a member of the EEC until 1995. Jimi Hendrix, who died in London, was a qualifying performer who held rights in the joint performances of the Jimi Hendrix Experience.

The court concluded that the evidence supported granting summary judgment to Experience Hendrix against Purple Haze Records and its "controlling mind," Lawrence Miller.

Case: Between Experience Hendrix LLC and (1) Purple Haze Records Ltd. (2) Lawrence Miller
Court: The High Court of Justice, Chancery Division, London, Feb. 24, 2005
Counsel for Experience Hendrix: Barrister Mr. Richard Arnold QC (Solicitors Nick Valner and Patrick Gardiner with Eversheds), London
Counsel for Purple Haze Records and Lawrence Miller: Barrister Mr. Richard Miller QC and Miss Denise McFarland (Solicitor Clive Sutton), London