Jimi Hendrix band members' heirs can continue claim against Sony Music

In a dispute between behemoth Sony Music ("Sony") and the estates of former band members of the legendary Jimi Hendrix Experience, Noel Redding and Mitch Mitchell, Sony has failed to prevent the Claimants from pursuing their claims to trial.

Following a two-day hearing in October 2023, the High Court heard Sony's application for reverse summary judgment and/or strike-out of proceedings for infringement of copyright in sound recordings and performers' rights relating to performances by the band. Pointing out at the start of his decision that Jimi Hendrix was "arguably the greatest rock guitarist ever", Michael Green J ultimately dismissed the application, and the case will proceed to trial. There has since been another hearing before Michael Green J concerning further / consequential arguments on 22 February 20224 – we await further details.

Background

The action has been brought by the estates of two now-deceased band members against Sony Music Entertainment UK Limited – the UK-based sub-licensee of US-based Sony Music Entertainment, which has a licence from Experience Hendrix LLC ("Experience") to exploit the band's recordings. Experience is the sole owner of the copyright owned by the late Jimi Hendrix since, following his death, his father was the sole heir to his estate and thus was the new owner of any copyright or shares thereof. Jimi's father incorporated Experience, as well as its worldwide licensing arm, and Sony says he assigned his inherited copyright to Experience.

The heirs to Noel and Mitch's respective estates argue that they are owed performance royalties for around 3 billion streams of the band's songs. Sony argues that the heirs are unable to bring a legal claim given, inter alia, releases to copyright claims that Noel and Mitch entered into during the 1970s.

Issues at the October hearing

Sony relied on four grounds in its application, namely that:

1. the Claimants failed to comply with CPR 19.3 (they argued the claim was improperly constituted because Experience and possibly its worldwide licensing arm were not parties to the claim);
2. there was no coherent claim for relief (see below);
3. there was no sufficient plea or credible evidence that the Claimants were entitled to bring the claim; and
4. historic releases and discontinuances (see below) meant that Noel and Mitch had no rights to pass to their respective estates.

Point 2 concerned Sony's argument that since the Claimants had not specified the percentage share of copyright each of them claimed to own in the prayer for relief, this was a breach of CPR 16.2(a) and (b). However, this lack of specificity was found to be acceptable since the Court could make its own determination on this point at a later stage. Similarly, as to point 3, the judge felt that chain of title would have to be substantiated in due course at the evidential stage, and could not be decided now.

Parties Not Joined

As to point 1, Sony's counsel argued that since Experience and possibly its worldwide licensing arm were not joined to the claim, the proceedings were improperly constituted. This was due to their being the successor in title to the copyright and other rights in the recordings that belonged to Experience and its licensee. Notable for practitioners is the point made by the judge that the White Book makes virtually no comment on the application of CPR 19.3 and certainly there is no suggestion that a party's failure to comply with the rule at the outset of proceedings means that they are improperly constituted. In any event, the parties being identified were on the same side as the Defendant and so were not prejudiced by the failure to join them. This was certainly not a case of, "there's too much confusion…I can't get no relief".

Historic Releases

As to point 4, those seasoned Jimi Hendrix fans may be aware of the notable historic releases Noel and Mitch agreed during the early half of the 1970s, as well as discontinuances relating to certain legal claims concerning copyright. Sony argued that Noel and Mitch had no relevant rights to pass to their estates since both had entered into these releases under New York law whereby in return for a financial sum, they agreed not to sue Jimi's estate and/or any record company distributing the band's recordings.

During the October hearing, the Claimants' New York attorney provided a report arguing that the releases should be narrowly construed; however the Claimants failed to seek permission to rely on this report when it was served. Sony naturally objected to the Claimants' later seeking permission to rely on the document, but the judge, whilst accepting Sony's objections, said that the earlier failure to seek permission was not fatal. Indeed, the report was admissible to show that there were sustainable arguments on the interpretation and effect of the releases under New York law that should be dealt with at trial. This is another notable point for practitioners given the judge's reference to paragraph 9.48(d) of the Chancery Guide, which says that that the parties' retained foreign lawyers "could assist the court with source documents and/or witness evidence on relevant legal principles" without the need to instruct separate foreign law experts. It was said that since the Claimants were responding to a point of New York law raised by Sony, it was appropriate to admit the report in question which showed that there are sustainable arguments on issues to be determined at trial.

 The judge also decided to park the following arguments for trial:

• the releases and discontinuances did not constitute clear, unequivocal, specific and informed consent to use the copyright; and
• the Claimants' performers' rights were not covered by the releases and discontinuances since they did not come into existence until such documents were signed.

Regarding the latter, the key question for trial is whether the original consent to first fixation extends to the exploitation of the recordings in digital form via streaming. On this point, the Claimants' lead barrister noted that the evolution of new technologies for listening to sound recordings, particularly the advent of digital media and streaming, could not have been contemplated at the time that consent was given to make the recordings subject to the releases.

Given there will be some very interesting questions answered, we eagerly await trial of the case should it not settle.

Footnote:

[1] r. 19.3(1) notes that "All persons jointly entitled to the remedy claimed by a claimant must be parties unless the court orders otherwise".