A claimant music publisher has failed to obtain a declaration of ownership of copyright in certain Bob Marley songs, including “No Woman No Cry”.1 Ownership of the copyrights depended on the interpretation of assignment wording under a March 1992 agreement with Island, which covered all of Marley’s “presently-existing musical compositions”. Marley had misattributed the songs to other writers to try to divert royalties from his record company.
Rejecting the claimant’s attempt to identify the parties’ intentions from the surrounding circumstances, the High Court ruled that the songs fell within the scope of the assignment to Island, finding that it would have taken express words to exclude the songs.
Bob Marley made a publishing agreement with Johnny Nash Music Limited in 1968. He signed as a recording artist with Chris Blackwell’s Island Records in 1972. On 11 October 1973 he entered into a publishing agreement with Danny Sims’ publishing company, Cayman Music Inc (CMI).
Between 1973 and 1976 Bob Marley wrote the songs in question. He deliberately misattributed their authorship to various friends and associates to gain control of the copyrights from CMI. His justification for this misattribution ploy was that he had not been paid any publishing royalties under the 1968 agreement or 1973 agreement. Chris Blackwell was made aware of the misattribution ploy in around 1974, yet Island still paid mechanical royalties to the misattributed authors.
Bob Marley died in 1981. In 1984, CMI sued Marley’s estate over the misattribution ploy in an action before a New York court. The claim was dismissed in January 1988 on limitation grounds, but the court did not rule on a counterclaim by the estate to rescind the 1968 and 1973 publishing agreements. Subsequently, Island decided to seek to acquire the rights in Bob Marley’s works and made an agreement with his estate on 27 April 1988. A further agreement was made on 10 September 1992.
Between the 1988 agreement and the September 1992 agreement, Danny Sims tried to sell rights in various Bob Marley works, including works obtained under the 1968 agreement and 1973 agreement. This led to the negotiation and conclusion of a March 1992 agreement between CMI and Island Logic Limited.
In 2006, Lewison J gave judgment in a High Court claim brought by Aston “Family Man” Barrett claiming rights in six of the songs. Chris Blackwell gave evidence for the defence, stating that those six compositions were not included in the March 1992 agreement. (He gave evidence in the present case that this assertion was in fact incorrect.) This inspired BSI Enterprises Limited to buy the copyrights from CMI under a May 2008 agreement. Subsequently, in 2011, BSI granted an exclusive licence to CMI.
The claimants, BSI and its licensee Cayman Music Limited (CML), sought declarations that BSI is the owner and CML is the exclusive licensee of copyrights in the music and lyrics of the songs in question. They also claimed an account of sums mistakenly had and received by the defendant, Blue Mountain Music Limited (a publishing company related to Island).
Ownership of the copyrights depended on the proper interpretation of the March 1992 agreement. At the date of the March 1992 agreement, the copyrights belonged to CMI. Blue Mountain asserted that the copyrights passed to Island under the March 1992 agreement. The claimants asserted that the copyrights remained with CMI, from whom BSI later acquired them. The songs were not expressly listed in the March 1992 agreement.
Rules of construction
Richard Meade QC, sitting as a deputy High Court judge, considered the well-known principles of contractual interpretation from ICS v West Bromwich Building Society2, including the following:
“(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.
(2) … it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent …
(5) … if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had.”
He also considered Rainy Sky SA v Kookmin Bank3, in which it was held that: (a) the process of interpretation is “an iterative process, involving checking each of the rival meanings against other provisions of the document and investigating its commercial consequences”; (b) it is “essentially one unitary exercise” with “regard to all the relevant circumstances”; and (c) if “there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other”.
The defendant also drew the judge’s attention to Chitty on Contracts4, which suggests that the intention of the parties is to be determined objectively, and that the meaning of a written agreement is to be determined from the document itself, having due regard to the factual matrix.
The judge found that the factual matrix included the following:
- The 1968 and 1973 agreements.
- The misattribution ploy.
- The New York action, in particular (a) that CMI had alleged the misattribution ploy and (b) the counterclaim, which was extant.
- That it was possible the misattribution ploy would be complained of in future litigation, and that ownership of the misattributed works was unclear.
- That there were likely to be “lost” works created by Bob Marley during the term of the 1973 agreement which had not been specifically identified.
- That Island was in the process of acquiring the estate’s interest in Bob Marley’s creative output.
- That this was being done by means of the 1988 agreement, which remained under challenge, and it was uncertain what form any final agreement would take.
- The general terms of the 1988 agreement.
- That Island wished to acquire as many Bob Marley rights as possible.
- That the works in question were registered at the US Copyright Office as written by the misattributed authors, and Island had been paying royalties accordingly.
In the judge’s view, the key clause of the March 1992 agreement was clause 1.8, which stated that:
“The term ‘Catalogue’ shall mean all presently-existing musical compositions … consisting of lyrics and/or music … written recorded [sic] by [Bob] Marley… and/or certain musical compositions written or composed by Alfonso Pyfrom and/or Jimmy Norman (which were recorded by … [Bob] Marley … ) … (individually a ‘Composition’ and collectively the ‘Compositions’) and all right, title and interest in and to such Compositions, including all copyrights … to the extent such compositions, copyrights … are owned, controlled or administered … by any member of Seller or by Seller’s Music Publishing Business … including … the Catalogue listed on Schedule 2 … Compositions also include all musical compositions owned by Seller which were recorded by [Bob] Marley…“
The claimants argued that the works in question were not included in clause 1.8. The defendant argued that they were. The claimants advanced six main points in support of their position:
- The claimants asked rhetorically why “No Woman No Cry” was not mentioned. The defendant argued that the works, including “No Woman No Cry”, were deliberately included by the general “sweep-up” in clause 1.8.
- The claimants relied on the unresolved dispute about misattributed songs and the fact that there was no language in the agreement to resolve the dispute. There was, therefore, they argued, a deliberate choice to avoid the issue. The defendant disputed this: the New York action was defunct, while the counterclaim was extant, and this explained why the latter and not the former was reflected in the agreement.
- The claimants asserted that the agreement did not resolve the issue of accrued royalties. The defendant argued that they would pass along with the works by virtue of clause 1.1, which defined “Acquired Assets” to include (a) “Compositions” and (b) “Songwriter Agreements”, or clause 1.22, which defined “Songwriter Agreements” to include all music publishing rights granted to CMI under its “songwriter contracts … whereby [CMI] is entitled to … rights to one or more Compositions”.
- The claimants asserted that there was a natural “home” for the works in Schedule 8A, which disclosed a list of encumbrances and referred to the counterclaim in the New York action, or Schedule 8B, which provided a list of Compositions in relation to which no warranty as to title was given. The defendant argued that it cannot be inferred from the warranties what is in fact sold.
- The claimants argued that, had the works been conveyed, there would have been additional encumbrances and restrictions on title to the works transferred, i.e. the New York action and/or the underlying dispute, as well as the songwriter agreements with the misattributed authors. The defendant argued that there would not.
- The claimants argued that, for the purposes of the agreement only, the parties had agreed that the works, as misattributed songs, were not owned by CMI. The defendant submitted that this added nothing to the earlier points.
Ownership of the copyrights
By points 1, 2 and 6, the claimants essentially asserted an agreement between CMI and Island either not to address the misattributed songs, or to treat them as not belonging to CMI (even if they did), but only for the purposes of the agreement. But such an agreement was nowhere to be found in the language used. The judge noted that his task was not to divine what he thought the parties were most likely to have agreed and then to bend the language; it was to interpret the language they chose. The judge found that:
- On point 1, looking to the language of the agreement, it seemed very firmly that “No Woman No Cry” was covered by clause 1.8, since “Compositions” included all songs written or recorded by Bob Marley that were owned by CMI.
- On point 2, it would have made no commercial sense for the parties to agree not to include the misattributed songs: Island wanted to buy everything it could, and CMI’s best opportunity to maximise its potential claim over the misattribution ploy was with Island. Further, the claimants’ arguments as to why the parties might have decided not to address the New York action were very speculative: the dismissal of the New York action, the registration of the estate as owner of the works and the 1988 agreement had the combined effect that the parties treated the works as in all likelihood belonging to the estate, so that all that was needed was the very general “sweep-up” of clause 1.8. There was also nothing in the language of clause 1.8 to support the claimants’ argument that the sweep-up covered only the “lost” songs; instead, it was conspicuously general to catch all compositions written or performed by Bob Marley and owned by CMI.
- On point 3, if there were accrued royalties, then under clause 1.1 and/or clause 1.22 they were also assigned to Island.
- On point 4, it would have been natural for the works to be included in Schedule 8A or 8B, but they may not have been on the (incorrect) assumption that they were already owned by the estate.
- On point 5, it was not clear why a claim that CMI had made would be regarded as an “Encumbrance”, nor how non-exclusive songwriter agreements would be “Restrictions”, given that the definition of those in the agreement did not include non-exclusive agreements.
Accordingly, the judge held that BSI did not own the copyrights.
The issue of any restitutionary claim in the claimaints’ favour (i.e. in relation to payments to Island from collecting societies) did not arise, because of the judge’s finding on the ownership issue. The judge was also very reluctant to make any findings on the law. He nonetheless made two factual findings in case of any appeal:
- He rejected the claimants’ argument that Island’s enrichment was unjust based on the original assertion of the New York action. That claim was dismissed in 1988, and by 2008 when BSI claimed to have acquired the works, the original assertion was “ancient history”.
- Island had grounds for a reasonable belief that it had acquired both ends of the dispute over the misattributed works, and had spent significant amounts of money to do so.
The judge also considered the issue of collection rights, in case he was wrong about the ownership of the copyrights. Island had asserted that, in any event, it had an implied licence to receive royalties from the collecting societies, arising from the claimants’ failure to notify Island of any claim, by analogy with Fisher v Brooker5. The claimants accepted that no specific notice was given of any claim before service of the claim form in the present case, but argued that Island was on notice as a result of its awareness of the misattribution ploy since the 1970s.
The judge held that there was no material distinction between the present case and Fisher v Brooker: in each case, there was a long delay on the claimant’s part in asserting its rights, during which it was aware that collecting societies were paying royalties to the defendant. So, even if Island did not own the copyrights, he would have held that Island had a gratuitous licence, which was terminated only with the issue or service of the claim form. Given the actual facts, the judge saw no need to rule on the precise time of termination. The claimants had also argued that Blackburn J had determined Fisher v Brooker incorrectly, but the judge considered that Blackburn J was right.
In some ways, it is difficult to see how this case ever got to court, despite the complex factual background. The judge had no hesitation in rejecting the claimants’ arguments, “tenacious and imaginative though they were”. He also commented that a “central fallacy” in the claimants’ argument was “to seek to identify the parties’ intention and agreement from surrounding circumstances” and then to make the language of the March 1992 agreement “yield to them at all costs”, rather than to seek “to find the intention and agreement in the document itself”. Unfortunately for the claimants, creative arguments are no substitute for basic principles when it comes to contractual interpretation.
Tom Iverson, Associate, Michael Simkins LLP
- 1) BSI Enterprises Limited (2) Cayman Music Limited v Blue Mountain Music Limited  EWHC 1690 (Ch).
-  1 WLR 896.
-  UKSC 50,  1 WLR 2900.
- 31st Ed., 12-043.
-  EWHC 3239 (Ch).