Heartbroken by infringement of performer’s rights
“If one had to chase down every consent for every last performer, (e.g. the third trombone player) before releasing a record, nothing would ever get done.”
This was the “general tenor” of the evidence for the defendant record label in Jodie Henderson v All Around the World Recordings Ltd.[1] But in His Honour Judge Birss QC, third trombone players – let alone featured performers – seem to have a vocal ally.
Background
The case relates to the 2007 hit record, Heartbroken. The stated artist was the bassline producer Tafazwa Tawonezvi, professionally known as T2. The track was stated to feature the singer Jodie Henderson, professionally known as Jodie Aysha (JA).
JA wrote the lyrics to the ultimate song. In 2005 JA sang a vocal part at T2’s bedroom studio set-up, over a slow R’n’B beat. T2 remixed the recording in a bassline style in January 2007. The remix featured chopped-up samples of JA’s vocals over a new backing track created by T2. T2 sent a copy of the remix to a DJ, Sean Scott, for inclusion on a mix CD. T2 also issued a small run of his own “white label” vinyl copies of the track.
T2 began using Heartbroken as part of his DJ set, and JA began to perform personal appearances in clubs, in which she sang the song over a backing track supplied by T2. The track became increasingly popular, attracting exposure on BBC Radio 1’s 1Xtra station. A record label, All Around The World Recordings Ltd (AATW), approached T2, by which time T2 had signed with another label called 2NV Records Ltd (2NV). On 13 August 2007 AATW signed a contract with 2NV for the release of Heartbroken, purporting to grant AATW all necessary rights for the release. The 2NV contract named T2 as the artist, and provided for an advance of £30,000. 2NV then offered JA £1,500 for her vocal performance, which she refused.
On 21 September 2007 JA signed a music publishing agreement with Sony/ATV, assigning her copyright in musical works to the publisher, including her contribution to Heartbroken.
At some stage in the summer of 2007, a promo video for the track was created under the guidance of T2 and 2NV, and funded by AATW. The video featured JA for a few short periods alongside other girls, although more prominently than them. The video centred predominantly on T2. JA claimed that she took part under protest, after being told by AATW that, if she did not, footage of other girls miming her lyrics would be used instead. JA’s publishing agreement with Sony/ATV included a deemed consent for promo videos, which entitled Sony/ATV to give consent to the release of the video, which it did. Sony/ATV advised JA to take part in the video.
The sleeve design for the single of Heartbroken was also the subject of disagreement. JA reluctantly agreed to be designated as a featured artist. She was also prepared to accept the use of images of both herself and T2 on the sleeve design, although the final cover featured neither image.
On 12 November 2007 Heartbroken was released by AATW. It reached number 2 in the main UK singles chart, and remained in the Top 40 for 46 weeks. Despite the track’s success, JA received no record royalties for the release. She was not paid for appearing in the video, nor for the use of her name on the artwork. Only T2 was registered with PPL by AATW as a featured performer, although JA considered his true role to be a remixer, entitled to only a small share of the income arising.
Claim
JA’s lawyers issued a claim against AATW in the Patents County Court, contending that the release of Heartbroken had infringed her performer’s rights. HHJ Birss QC focussed on the performer’s “property rights” under the Copyright, Designs and Patents Act 1988, namely the requirements for the performer’s consent to copying (section 182A), distribution (section 182B), rental and lending (section 182C) and making copies available to the public (section 182CA).
In its defence, AATW argued that JA knew about and consented to the release. In support of this, AATW drew the court’s attention to her participation in the song’s promo video, her permission to use her image on the single cover, her performances of the song in support of the release, and meetings that she had attended with AATW during co-ordination of the track’s promotion.
JA’s reply submitted that any consent that could be gleaned from her behaviour (the existence of which she denied) would not be unqualified. There would be some requirement to account to her for profits derived from exploitation of the track.
Consent requirements
The judge noted that there is no legal requirement for a performer’s consent to be in writing, and that consent could be express or implied. He commented that the existence of consent is “highly fact-sensitive”,[2] but that as a matter of “common sense” the existence of conscious consent would be unlikely “in the absence of financial terms of some kind”.[3]
The judge found that the principles set out in Redwood v Chappell,[4] formulated for implied or inferred consent in the context of copyright, also applied by analogy to performer’s rights. So the test was whether, viewing the facts objectively, the words and conduct of the performer as made known to the other party indicated that the performer consented.[5]
Decision
The judge considered the question of JA’s consent chronologically, beginning in 2005 at the time of the original recording of her vocal performance. On this subject the witness evidence was contradictory. JA insisted that she gave no consent to being recorded. T2 maintained that the purpose of her visit to his flat at that time was to make a recording. The judge favoured T2’s evidence, commenting that JA must have known she was being recorded, having previously taken part in recording projects. That was, however, “a very long way from a finding that this consent was sufficient to permit T2 to remix or release that recording without JA’s specific consent at a later date”.[6]
Indeed, the judge found that JA did not consent to the final version of the track, as released, which was remixed by T2 in 2007. JA’s evidence on the point was corroborated effectively by two witnesses. The judge also noted that, following the “white label” release, she had been presented with a “fait accompli”, and her subsequent actions, including singing the song in clubs, must be seen in that light.
The judge also found no consent by JA during AATW’s involvement.
- Implied consent to the release could not be inferred, since AATW’s representatives were aware of JA’s dissatisfaction with the situation. Her willingness to accept a cover for the single with both her and T2’s image on it, with a credit reading “T2 featuring Jodie Aysha” had to be seen in the context of her having no realistic alternative, being in a very weak position. It did not equate to consent. The same was true of her “clearly unhappy” participation in the promo video organised by AATW, as well as her personal appearances.[7]
- Crucially, AATW’s representatives were aware that JA had not signed a contract with 2NV. They therefore knew, or ought to have known, that she had no contractual right to royalties. They must have known that she would not have given her consent to the release for nothing.
The judge therefore ruled that AATW’s release of the track had infringed her performer’s rights.
Comment
The judge conceded that record companies need to be pragmatic, commenting that: “Businesses often have to take risks and the music business is no different.”[8] In releasing Heartbroken, AATW had taken a conscious, calculated risk, perhaps assuming that JA’s consent would be obtained at a later stage.
But this was just “stringing her along”, as JA put it, and the judge agreed.[9] While in practice such risk-taking may be inevitable, the case serves as a reminder of the potentially serious consequences for labels and production companies – especially where, as is often the case, the artist is in a much weaker bargaining position, a factor that the courts will take into account when deciding which way to lean.
So the case underlines the need for labels and production companies to try to obtain express, written consents from all performers – and in good time before a release. From the company’s perspective, all well drafted artist agreements and performer consent forms should, in any event, contain appropriate grants of performers’ rights (including grants of property rights, non-property rights and name-and-likeness rights, as well as waivers of moral rights). In reality, however, the difficulty is tying up the loose ends, such as actually getting forms signed by featured performers and session players at the time of the recording session, as aptly illustrated by this case.
The case also represents a cautionary tale for artists or production companies signing deals that purport to confirm all necessary third-party rights for release, in circumstances where their ability to do so is questionable. AATW may have lost at trial, but it obtained default judgment on a Part 20 additional claim against 2NV, on the basis that there had been a breach of the warranties contained in the 2NV contract.
Either way – in bassline or any other genre – obtaining consent should be the bottom line. It can certainly go to the bottom line if it is left to chance.
Article written for Entertainment Law Review.
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[1] [2013] EWPCC 7, para. 74. Paragraph references below are to paragraphs of this judgment.
[2] Para. 47.
[3] Para. 44.
[4] [1982] RPC 109.
[5] Para. 48.
[6] Para. 65.
[7] Para. 79.
[8] Para. 83.
[9] Para. 91.
