Distributor not liable for secondary infringement of copyright in Eminem album

May 14, 2019

In FBT Productions LLC v Let Them Eat Vinyl Distribution Ltd the High Court has found a record company liable for primary infringement of another label’s copyright in Eminem’s first album, Infinite. Yet the related distributor was not found liable for secondary infringement under section 23 of the Copyright, Designs and Patents Act 1988 (CDPA), as in the judge’s assessment it did not know (or have reason to believe) that the copies it sold were infringing copies.  The reasoning of the judgment is instructive on how courts are likely to approach applying that test.

Decision

On the facts, Mr Justice Hacon held that the record company, Let Them Eat Vinyl, infringed the copyright by manufacturing and selling vinyl copies of Infinite, as it did not have a valid licence from the actual copyright owner to do so.  The proprietor Mr Beatty did not, however, know or have reason to believe that the vinyl and CD copies of Infinite sold by the distributor, Plastic Head, were infringing copies of another person’s copyright. So the distributor was not liable for the alleged secondary infringement.

Comment

While this case has not created any new law as such, it serves as useful guidance on how the courts may interpret secondary infringement under section 23 of the CDPA. All relevant factors known to a reasonable person, in the defendant’s position, at the time, will be considered objectively.  Where the reasonable person is not a lawyer, their belief need not include a realisation of the full details of why infringement of copyright has occurred, such as the identity and nature of a particular copyright work, precisely who owns the copyright or why a licence does not exist. All that is required is for the facts to have led a reasonable person to believe that dealing in the copies would be in breach of a right in the nature of copyright held by another person: mere suspicion is not enough.

HHJ Hacon commented that the lawyers who drafted both the recording agreements at issue in this case might have adapted precedent documents. That might explain the use of the term “Company” to refer to the actual copyright owner, FBT Productions (which at the time was a partnership) in the original recording agreement, as well as the unclear wording of the later recording agreement with Eminem’s subsequent label, which when (on the face of it) citing earlier Eminem recordings, referred to a blank Schedule 1.  Both drafting errors turned out to be red herrings in this case, but practitioners should naturally take care to avoid potentially misleading drafting in entertainment contracts, especially when it comes to chain of title.

At least in this Eminem case, there was ultimately no doubt about the Real Slim Shady.

Ed Baden-Powell , Partner and Rachael Heeley, Trainee Solicitor, Simkins LLP

To read the full article, click here.  Written for Entertainment Law Review.