A Disappointing Experience for Sony

Summer Levy

A recent High Court case in relation to Jimi Hendrix recordings was of interest to lawyers and classic rock fans alike but is also of wider relevance in relation to copyright and the settlement of claims.

The High Court refused Sony Music Entertainment UK Limited’s (Sony) application to strike out a claim brought by the Estates of the late Noel Redding and ‘Mitch’ Mitchell.

Background

The Jimi Hendrix Experience (JHE) was short-lived but massively influential.  It was formed in 1966 by Jimi Hendrix (recognised by the judge as arguably the greatest rock guitarist ever) with Noel Redding on bass and ‘Mitch’ Mitchell on drums.  JHE recorded three studio albums before breaking up in 1969.  Hendrix passed away in 1970; Redding and Mitchell died in the 2000s, both in relative poverty.

In 2022, the estates of Redding and Mitchell brought a claim against Sony for a declaration that they own a share of the sound recording copyrights in the albums and to certain performers’ property rights.

They relied on a verbal partnership agreement between the members of JHE in which it was agreed that the profits would be divided 50% to Hendrix, 25% to Redding and 25% to Mitchell.

Sony’s case was that the entirety of Hendrix’s Estate, including any copyrights that he owned, passed to his father and was later assigned to Experience Hendrix LLC (operated by members of the Hendrix family).

Sony had a licence from Experience Hendrix LLC to exploit, publish and/or distribute the recordings of JHE, which, the claimants said, infringed their rights, namely copyright and certain performers’ property rights.

Hearing

Sony issued an application to strike out the whole claim (and/or for summary judgment) on a number of grounds, some of them being procedural.  The main ground of substance was that the releases and discontinuances (referred to below) meant that Redding and Mitchell had no further rights in the recordings.

In effect the judge (Mr Justice Michael Green) had to determine whether the claims had a realistic prospect of success and should proceed to trial.

In 1972, Redding and Mitchell had brought claims in the New York courts against the administrator of Hendrix’s Estate and a company called Are You Experienced Limited for an account and payment of royalties they claimed were due to them. Redding and Mitchell settled their claims in the sum of $100,000 and $247,500 respectively in return for Redding and Mitchell entering into separate releases (Releases) in which they promised not to sue Hendrix’s Estate.  The Releases were subject to New York law.  The claims were formally discontinued as a result.

In the current claim, the claimants’ New York attorney provided an expert’s report which argued that the Releases should be narrowly interpreted under New York law and should not prevent the bringing of this claim since it was not within the contemplation of the parties at the time of the Releases – particularly given the advent of digital media and streaming.

Sony argued that the claimants should not be entitled to rely on the attorney’s report for various reasons, mainly procedural in nature, while acknowledging that if the report was allowed in evidence, the claimants would be allowed to proceed with their claim.

The judge decided to allow the attorney’s report in evidence.

Outcome

The decision to allow the attorney’s report meant that the claimants successfully opposed the application in relation to copyright since it was accepted, based on the report, that they had a real prospect of succeeding on that issue at trial.

The judge also found that in the case of the performers’ property rights, the claimants had a more than arguable case that the Releases did not include consent to the present exploitation of such rights.

The judge therefore dismissed Sony’s application for a strike out and/or summary judgment.

A number of the pleaded points put forward by Sony were withdrawn and others were struck out by the court.  However the main arguments in the case remain to be dealt with at trial – specifically the claims in respect of copyright and performers’ property rights.

Practical points

It is quite rare for a settlement agreement from roughly 50 years ago to come under the microscope in this way – especially in a different jurisdiction – although it can happen in relation to copyright and related performing rights.

More generally, when any commercial settlement agreement is being negotiated and documented, the parties are always strongly recommended to consider whether the settlement is to be in respect of all possible claims, whether contemplated or not and whether they are existing or future claims, or whether the range of claims being settled is to be more limited.  Legal advice should always be sought.

If you would like to discuss any issues arising from this case please do not hesitate to contact Summer Levy at summer.levy@bermans.co.uk or any of our litigation or commercial contract lawyers.