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European IP Bulletin, Issue 32, June 2006 - Copyrights

COPYRIGHTS

2. The Legacy of Bob Marley and The Wailers

On 15 May 2006 the High Court of Justice in the United Kingdom gave its verdict in the case of Aston Barrett v Universal–Island Records Ltd And 12 Others [2006] EWHC 1009 (Ch).  Lewison J dismissed the claims by Mr. Aston Barrett for a share of royalties under a 1974 contract with Island Records, for song writing royalties in respect of songs which he claimed to have co-written with Bob Marley and for infringement of his rights in his performances.

Aston Barrett and Carlton Barrett were both members of the band Bob Marley and the Wailers.  In 1974, Bob Marley signed an exclusive artist agreement with the first defendant, which had initially been addressed to him and the Barrett brothers. He subsequently signed two recording agreements whereby he was the solo artist. During this period until his demise from cancer in 1981, Bob Marley was paid by the record label and he in turn paid the members of his band. He retained 50% of the proceeds and distributed the remaining amount to the various band members. There were no contracts and the money was paid on trust. 

On the strength of the 1974 Agreement, Aston Barrett and other members of the Wailers made a claim for a percentage of royalties, profits and assets accruing from Bob Marley’s estate as partners with Bob Marley prior to his demise.  During the trial, Rita Marley (Marley’s widow) and Island Records diminished the brothers’ contributions and claimed that the claimant had surrendered his right to further royalties in a 1994 settlement agreement that paid him a share of a settlement figure of $500,000 awarded to the Wailers and agreed not to raise any further claims against the estate of Bob Marley or its beneficiaries.  In addition to this they agreed to take part in the Legend II tour which was filmed and later released on video and DVD.  The estate of Mr. Carlton Barrett (who was murdered in 1987) was not party to this agreement. 

The claimant objected to the release of his fixed performances and said the actions of the second defendant to release the music to the public without his authorisation amounted to the infringement of his rights in the performances.  The claimant further claimed that he had authorship rights in 7 of the tracks by the band and the credits on the album attributed authorship of the said tracks to the brothers.

Lewison J saw no reason not to enforce the settlement agreement against the claimant.  The court held firstly that the settlement agreement compromised any claims by the claimant and there was no evidence brought to the court which would have necessitated the waiver of the terms of the settlement.  Secondly, the claimant could not use the present action to claim authorship of the songs which had been subject to previous proceedings.  Finally, the defendants did not require separate authority to affix the performances on other carriers such as the DVD.  Although it was held that there was nothing in the 1994 settlement that prevented the claimant from bringing the claim on behalf of Carlton Barrett’s estate, Carlton Barrett had not been party to the agreements nor had Bob Marley entered into them on his behalf. Thus, the claim on behalf of Carlton Barrett’s estate failed. Furthermore, the authorship of the songs was attributed to Bob Marley and the claimant failed to establish the absence of consent in relation to the performances in question.

The judgment includes an examination of performers’ rights, with particular regard to sections 182A and 182B of the Copyright, Designs and Patents Act 1988 implemented by regulation 20 of the Copyright and Related Rights Regulations 1996, effective 1 December 1996 which itself implemented Council Directive 92/100/EEC of 19 November 1992. Section 182A concerns the consent required for copying a recording, and section 182B concerns the consent required to issue copies to the public. Both were found to be sufficiently different rights to those conferred by section 182 of the Act in its original form to amount to “new rights”. As a result, Regulation 27 of the Directive, which provides that “…nothing in these Regulations affects an agreement made before 19th November 1992”, affords a defence to a performers’ right claim.

Lewison J also held that the facts of the case where such that consent to the issuing of copies of a recording to the public could possibly be inferred from consent to record the performance. Bassey v Icon Entertainment plc [1995] EMLR 59 was distinguished, as in that case Bassey had expressly consented to the recording but retained a veto over subsequent releases.  It was held that it was up to Barrett to demonstrate that he had not consented. Lewison J found that Barrett had either consented (as recordings were made pursuant to agreements) or had not demonstrated that he had not consented, being aware of various recordings. Lewison J held that if the question had arisen, he would have held that the claimant had failed to establish the absence of consent to the relevant performances. Lewison J further held that separate consent is not required to issue to the public the same performance merely because the method of fixing the performance had improved technologically (i.e. from video to DVD) where the target audience was the same and the storage medium gives the same aural and visual information.

The main copyright issues addressed by the court were authorship of music and consent in relation to fixation and publication of performances.  Although the Barrett brothers contributed in the arrangement of the 7 tracks in question, the composition of the underlying melody and the lyrics were attributed to Bob Marley as the author. The licensing of the performances was not an issue as by participating in the recording knowing that it would include the distribution of the album to the public, the Barretts were taken to have consented to the reproduction of the album for that purpose.  The issue of infringement of their rights in the performance would thus not arise.

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