Infinite case ends – with limited award of damages for infringing copies of Eminem’s album

On the facts, the IPEC rejected damages claims based on:

(a) loss of opportunity to license a third party to coincide with the 20th anniversary of Infinite; and/or

(b) losses arising from the licence that the claimant would have offered the defendant for releasing the album. 

Instead, the IPEC assessed damages on the basis of a reasonable royalty for the defendant’s actual sales of the record, assuming a negotiation between a willing licensor and willing licensee.  That resulted in a putative fee of £2.50 per unit, plus interest.

Comment

While this case does not establish any new point of law, it provides a helpful illustration of the law that the court is likely to apply when deciding whether there has been a loss of opportunity to grant a licence to a third party, and what might be considered to be a reasonable royalty, based on the notion of a willing licensor/licensee negotiation.  It also confirms several factors that may (or may not) be useful when establishing whether a contract is a relevant comparable for the purposes of assessing the hypothetical bargain between parties to a dispute in this context.

Finally, it serves as a reminder that the courts tend to be conservative in their approach to awarding damages.  The sum awarded in this case was a tiny fraction of the £288,209 claimed by the claimant.

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