May 15, 2017

In 1970 the band Mungo Jerry recorded and released a song called In the Summertime. It went to number one in the charts in many countries of the world, including the UK. Mungo Jerry became famous, as did the frontman and songwriter of the band, Ray Dorset.

Mungo Jerry had subsequent hits. One of these was a song called Alright, Alright, Alright, released in 1973.

In September 2011 the claimant, Editions Musicales Alpha Sarl (EMA), a French music publishing company, issued proceedings against the first two defendants seeking a declaration that EMA owned the copyright in Alright. EMA also sought an injunction and damages, alleging that EMA’s copyright had been infringed. In June 2012 Mr Dorset was joined as third defendant along with the fourth defendant and the fifth defendant, Associated Music International Ltd (AMI).

In August 2012 AMI brought an additional claim against Mr Dorset seeking an indemnity against Mr Dorset in respect of any sums it was held liable to pay to EMA.

The main action was settled, leaving only AMI’s additional claim against Mr Dorset. AMI claimed that Mr Dorset had warranted to AMI, expressly or by implication, that Mr Dorset’s company, Satellite Music Ltd, was the owner of copyright in Alright and that Mr Dorset was the composer of Alright. Relying on Mr Dorset’s representations, AMI had entered into an assignment agreement with Satellite and Mr Dorset pursuant to which Satellite purported to assign copyrights in about 350 musical works, including Alright to Mr Dorset and AMI, in the proportions 75% to Mr Dorset and 25% to AMI. AMIT had then entered into a licence agreement with another music publisher that had led to AMI being joined as a defendant to proceedings brought by EMA. Mr Dorset’s representations were false, AMI said, meaning that AMI was entitled to an indemnity in respect of the sums that AMI was obliged to pay to EMA to settle EMA’s claim against it. Further or alternatively AMI was entitled to damages.

Judge Hacon found that Mr Dorset’s contribution to the composition of Alright was the creation of the lyrics plus some adaptation of the music from another song. EMA acquired the copyright in Alright pursuant to an agreement that said that Mr Dorset would be credited only as joint author of the lyrics to Alright. Mr Dorset therefore knew that he never owned the copyright to either the music or lyrics of Alright and neither did his company, Satellite. Despite this, Mr Dorset represented to AMI that Satellite owned the copyright in the song.

Judge Hacon had no doubt that AMI had entered into the assignment agreement with Satellite after Mr Dorset’s misrepresentation that Satellite owned the copyright in Alright and, so far as that song was concerned, in reliance on the misrepresentation. As a result, AMI believed itself to be the recipient of 25% of the copyright in Alright and felt free to allow that 25% to be exclusively licensed. It was that exclusive licence and its exploitation that had led to AMI being joined as a defendant to EMA’s claim for infringement of copyright and AMI’s payment of £33,600 to EMA to settle the case. AMI’s claim against Mr Dorset for misrepresentation under s 2(1) of the Misrepresentation Act 1967 therefore succeeded. Judge Hacon also found that Mr Dorset had given an implied warranty that Satellite owned the copyright in Alright, but given his findings on misrepresentation, it made no difference.

Mr Dorset was ordered to reimburse to AMI the £33,600 that it had paid to EMA. However, Judge Hacon declined to order the payment of lost royalties to AMI. (Editions Musicales Alpha Sarl v Universal Music Publishing Ltd [2017] EWHC 1058 (IPEC) — to read the judgment in full, click here).