“IT IS HEREBY STIPULATED AND AGREED, by and between COVINGTON, HOWARD, HAGOOD & HOLLAND, ESQS, as attorneys for the Defendant and JEROME B. FLEISCHMAN, ESQ. Attorney for the Plaintiff NOEL REDDING, parties to the above entitled action, that whereas no party to this Stipulation is an infant or incompetent person for whom a Committee has been appointed and no person not a party to this Stipulation has an interest in the subject matter thereof, the above entitled action, be and the same hereby is discontinued, insofar as it alleges causes of action on behalf of said NOEL REDDING, without costs to either party hereto as against the other. The causes of action alleged on behalf of the said NOEL REDDING are discontinued with prejudice. This Stipulation may be filed without further notice with the Clerk of the Court.”
“IT IS HEREBY STIPULATED that: 1. The appeal of John Graham Mitchell from an order of the Supreme Court, New York County, dated July 16, 1974, which appeal now is pending before the Appellate Division of the New York State Supreme Court, First Department, be and hereby is withdrawn with prejudice and without costs to either party: and 2. Whereas neither plaintiff John Graham Mitchell nor defendants are infants or incompetents, the above-captioned action be and hereby is discontinued as between said plaintiff and defendants, with prejudice, and without further costs to either party as against the other.”
“134. Taken together, these documents [the Technology Documents] demonstrate that there was a long, incremental and highly contested technological journey from the purely physical, carrier-based market of the 1960s/70s to today’s intangible access-based streaming environment where the consumer can access practically limitless music, use it to create playlist[s] for sharing and does not own the music listen[ed] to in any meaningful sense.”
“14. Subject to filing and serving expert reports and complying with the directions at paragraphs 15 to 18 below, (1) the Claimants and (2) the Defendant each have permission to adduce oral evidence from one expert in the field of New York law on the following issues: the principles of New York law on (a) the construction of the Releases (but for the avoidance of any doubt, not the meaning of the Releases when applying those principles); and (b) the effect of the Discontinuances limited to one expert on each side.”
“…..Yes, we can look at the context of any contract. We are more encouraged to look at the context in a release. So rather than perhaps stating that a release is something other than a contract, we're looking more at a -- perhaps we could think of it as a spectrum, whereas in some contracts we would be more encouraged to look within the four corners. But in a release, we are on the other end of the spectrum. We are encouraged to look more at the context. Q. Do you have any authority for that proposition or not? A. It's written right here in Mangini, as we just discussed. It is true, quoting Mangini now: "It is true that a general release is governed by principles of contract law. There is little doubt, however, that its interpretation and limitation by the parol evidence rule are subject to special rules". That right there is an acknowledgment that it is both a contract, subject to the rules of contract interpretation, but also, yes, we apply some special rules. Q. I don't see the court there saying there's a spectrum of contracts of which releases are at one end, where you have to look specially at the context. A. No, those are my words, not the court's.”
“WHEREAS: (1) The Artistes together at present form a group of musical performers professionally known as JIMI HENRIX EXPERIENCE (2) The Producers are desirous of acquiring the exclusive services of the Artistes for the purpose of making and exploiting sound recordings of musical performances rendered by the Artistes and of enhancing and promoting the professional reputations and success of the Artistes”
“(i) To have assigned to it the copyright in any arrangements or transcriptions of musical works made by the Artistes for the purposes of the said sound recordings (ii) To use and publish their name or names as publicly known or as otherwise agreed upon by the parties with or without photographic or other likenesses of the Artistes as when and where the Producers shall think fit.
“6. THE Producers shall have the following rights in respect of any sound recordings made hereunder:— (i) The copyright throughout the world in all sound recordings of performances of musical works by the Artistes (ii) The sole and exclusive rights to manufacture/sell lease assign licence distribute or otherwise use or dispose of the said sound recordings and records tapes or other reproductions by any method now known or hereafter to be known made therefrom at such prices and under such labels and trade names as the Producers shall think fit (iii) The sole and exclusive right to perform publicly or permit the public performance of the said sound recordings including performance by broadcasting tape wire diffusion television or by any other means now known or hereafter to be known (iv) The sole and exclusive right to record or use any of the said sound recordings on records in conjunction with recordings of musical performances by other artistes (v) The right to authorise any other person firm or company to do any of the aforesaid acts in sub-clauses (i) (ii) (iii) and (iv) of clause 6.” (i) The copyright throughout the world in all sound recordings of performances of musical works by the Artistes (ii) The sole and exclusive rights to manufacture/sell lease assign licence distribute or otherwise use or dispose of the said sound recordings and records tapes or other reproductions by any method now known or hereafter to be known made therefrom at such prices and under such labels and trade names as the Producers shall think fit (iii) The sole and exclusive right to perform publicly or permit the public performance of the said sound recordings including performance by broadcasting tape wire diffusion television or by any other means now known or hereafter to be known (iv) The sole and exclusive right to record or use any of the said sound recordings on records in conjunction with recordings of musical performances by other artistes (v) The right to authorise any other person firm or company to do any of the aforesaid acts in sub-clauses (i) (ii) (iii) and (iv) of clause 6.”
“7. THE Producers agree to do the following acts and things during the continuance of this Agreement:- (i) To obtain all necessary licences and consents for the making of the said sound recordings (ii) To pay all costs incurred in making and exploiting the said sound recordings including royalties to any person firm or company (iii) To procure suitable premises and equipment for the purpose of making the said recordings (iv) To use their best endeavours to exploit all of the said sound recordings” (i) To obtain all necessary licences and consents for the making of the said sound recordings (ii) To pay all costs incurred in making and exploiting the said sound recordings including royalties to any person firm or company (iii) To procure suitable premises and equipment for the purpose of making the said recordings (iv) To use their best endeavours to exploit all of the said sound recordings”
“8. THE Producers agree to pay to the Artistes jointly during the continuance of this Agreement by way of a commission to be divided between them according to their own absolute discretion such commission to be equal to:-”
“(v) The Producers shall be entitled to deduct from the receipts of the Producers upon which commissions are calculated and thus adjust the calculation the following sums:- (a) any expense incurred by the breach by the Artistes of Clause 2 (iv) hereof: (b) any sum in respect of each sound recording title which the Producer may pay within 30 days after the proof of each record sidefor the services or accompanying musicians vocalists arrangers and copyists and for arrangements studio rentals and other costs of making the sound recording” (a) any expense incurred by the breach by the Artistes of Clause 2 (iv) hereof: (b) any sum in respect of each sound recording title which the Producer may pay within 30 days after the proof of each record sidefor the services or accompanying musicians vocalists arrangers and copyists and for arrangements studio rentals and other costs of making the sound recording”
“9. THE Producers may upon giving notice to the Artistes assign lease or licence the rights under this Agreement to any person firm or company whether for a limited period or for the duration of this Agreement as it shall in its absolute discretion think fit”
“(a) UPON the expiration of or the other termination of this Agreement for any reason whatsoever the Producers shall nevertheless continue to have the right for a period of Five years after such termination or after the termination of any renewal period to sell in the normal course of business only all stocks of any record manufactured hereunder and shall continue to account to the Artistes for commission in respect thereof as hereinbefore provided (b) Upon the expiration of the aforesaid period of sale (hereinafter called the "sell-off period") then at the Artistes option and at the written request of the Artistes given not later than three months after the expiration of the sell-off period the Producers shall either destroy all duplicate tape recordings acetate masters metal mothers and any other derivatives of the Artistes recordings in the Producers possession at the date of the request under the supervision of any agent designated by the Artistes or shall deliver to the Artistes or to any agent designated by the Artistes all such material and in the event of the Artistes requiring delivery then the Artistes shall pay to the Producers the Artistes costs of manufacturing any records or other material and any actual expense incurred by them for packing and shipping and any other expense of whatsoever nature to which the Producers shall be put in complying with the terms of this sub-clause”
“i) The court construes the relevant words of a contract in their documentary, factual and commercial context, assessed in the light of (i) the natural and ordinary meaning of the provision being construed, (ii) any other relevant provisions of the contract being construed, (iii) the overall purpose of the provision being construed and the contract or order in which it is contained, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions – see Arnold v Britton[2015] UKSC 36 ,[2016] 1 All ER 1 ,[2015] AC 1619 per Lord Neuberger PSC at paragraph 15 and the earlier cases he refers to in that paragraph; ii) A court can only consider facts or circumstances known or reasonably available to both parties that existed at the time that the contract or order was made – see Arnold v. Britton (ibid. ) per Lord Neuberger PSC at paragraph 20; iii) In arriving at the true meaning and effect of a contract or order, the departure point in most cases will be the language used by the parties because (a) the parties have control over the language they use in a contract or consent order and (b) the parties must have been specifically focussing on the issue covered by the disputed clause or clauses when agreeing the wording of that provision – see Arnold v. Britton (ibid. ) per Lord Neuberger PSC at paragraph 17; iv) Where the parties have used unambiguous language, the court must apply it – see Rainy Sky SA v Kookmin Bank[2011] UKSC 50 , [2012] 1 All ER (Comm) 1,[2012] 1 Lloyd's Rep 34 per Lord Clarke JSC at paragraph 23; v) Where the language used by the parties is unclear the court can properly depart from its natural meaning where the context suggests that an alternative meaning more accurately reflects what a reasonable person with the parties' actual and presumed knowledge would conclude the parties had meant by the language they used but that does not justify the court searching for drafting infelicities in order to facilitate a departure from the natural meaning of the language used – see Arnold v. Britton (ibid. ) per Lord Neuberger PSC at paragraph 18; vi) If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other – see Rainy Sky SA v. Kookmin Bank (ibid. ) per Lord Clarke JSC at paragraph 2 – but commercial common sense is relevant only to the extent of how matters would have been perceived by reasonable people in the position of the parties, as at the date that the contract was made – see Arnold v. Britton (ibid. ) per Lord Neuberger PSC at paragraph 19; vii) In striking a balance between the indications given by the language and those arising contextually, the court must consider the quality of drafting of the clause and the agreement in which it appears – see Wood v Capita Insurance Services Ltd[2017] UKSC 24 , [2018] 1 All ER (Comm) 51,[2017] AC 1173 per Lord Hodge JSC at paragraph 11. Sophisticated, complex agreements drafted by skilled professionals are likely to be interpreted principally by textual analysis unless a provision lacks clarity or is apparently illogical or incoherent– see Wood v Capita Insurance Services Ltd (ibid. ) per Lord Hodge JSC at paragraph 13; and viii) A court should not reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight, because it is not the function of a court when interpreting an agreement to relieve a party from a bad bargain – see Arnold v. Britton (ibid. ) per Lord Neuberger PSC at paragraph 20 and Wood v. Capita Insurance Services Limited (ibid. ) per Lord Hodge JSC at paragraph 11.”
“it starts with the words and the relevant context, and moves to an iterative process checking each suggested interpretation against the provisions of the contract and its commercial consequences. The court must consider the contract as a whole and give more or less weight to elements of the wider context in reaching its view as to its objective meaning.”
“[19] In considering transactions that have taken place a significant time in the past, there is a general presumption that all the necessary procedures have been properly followed, the result being that the burden of proving otherwise rests on any party who challenges the transaction. The presumption is generally referred to by the Latin maxim omnia praesumuntur rite esse acta, or in the full version found in Trayner, Latin Maxims and Phrases, omnia praesumuntur rite et solemniter acta esse: all things are presumed to have been done duly and in the usual manner. The principle is of wide application, and has been applied to commercial transactions: examples are found in Bain v Assets Co Ltd and Guthrie v Stewart. A recent example is Cumbernauld Housing Partnership Ltd v Davies, where the title to sue of a property factor was challenged on the ground that no document appointing the factor had been produced to the court. The maxim was invoked to establish the proper appointment of the factor, who had been acting as such for ten years (see para 12).”
“(4) Subject to the provisions of this Act, the maker of a sound recording shall be entitled to any copyright subsisting in the recording by virtue of this section: Provided that where a person commission the making of a sound recording, and pays or agrees to pay for it in money or money’s worth, and the recording is made in pursuance of that commission, that person, in the absence of any agreement to the contrary, shall, subject to the provisions of Part VI of this Act, be entitled to any copyright subsisting in the recording by virtue of this section.”
“(8) For the purposes of this Act a sound recording shall be taken to be made at the time when the first record embodying the recording is produced, and the maker of a sound recording is the person who owns that record at the time when the recording is made.”
“The entity which had entered into the CBS recording agreement was, as I have previously held, Laurel Canyon Productions, whose activities were taken over by Laurel Canyon Ltd soon after its incorporation on June 29,1972. I see no reason to doubt the evidence of Mr Appel that it was Laurel Canyon Ltd, or perhaps Laurel Canyon Productions in respect of the first few weeks, which made and paid for the arrangements with the 914 Studios. While it was the 914 Studios which provided the recording equipment and they may well have provided the blank tapes as well, in the absence of evidence to the contrary, of which there was none, I would infer that the arrangements with the 914 Studios were such that the blank tapes used for making recordings became the property of Laurel Canyon Ltd (or Laurel Canyon Productions) immediately before they were used for recording purposes.”
“(c) What amounts to a commissioning? In general, the word “commission” means “order”
“any sum in respect or each sound recording title which the Producer may pay within 30days after the proof of each record sidefor the services of accompanying musicians vocalists arrangers and copyists and for arrangements studio rentals and other costs of making the sound recording”
“(3) Subject to the last preceding subsection, where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.”
“Counsel for the plaintiff, however, relied on it for the proposition that, if a photographer takes photographs pursuant to a commission, assume sufficient consideration, and the photographs are rejected because they are no good, the photographer does not thereby get the copyright in the photographs. I did not understand counsel for the defendant to assert that he did. Acceptance or non-acceptance of the photographs taken pursuant to a commission duly established under section 4(3) has no relevance.”
“Counsel submitted that the word "commission" meant certainly more than a simple request, and relied on the observations of Pritchard J. for that proposition, but how much more he did not say, nor could anyone say, with clarity. It seems to me that the word "commission" in the subsection before me, as applied to the taking of a photograph, is just a grand word for "order" and that the earlier cases on copyright in photographs show that in the informal circumstances which often accompany the ordering of a photograph, a bare request has in the past been accepted by the courts as a sufficient trigger to an enquiry whether in all the circumstances an obligation to pay ought or ought not to be implied. It is difficult to say that the word "commission" in section 4(3) of the 1956 Act "implies" an obligation to pay, because the subsection itself expressly requires such an obligation, but it is not, I think, improper to suggest that it "connotes" such an obligation in the sense that it is naturally associated with payment. If there is a threshold above which a bare request must rise in order to amount to a commission to take a photograph as between a professional photographer and a stranger to him, in ordinary circumstances it has proved so low as to be almost imperceptible in the cases.”
“The object to which subsection (3) applies is a single negative regarded as an artistic work. What has to be shown to bring the work within the subsection is, first, that a person commissioned the taking of a photograph before the film was exposed and the negative made; secondly, that that person, the commissioner, agreed to pay for it - putting on one side for the moment precisely what the pronoun "it" stands for in the subsection - and agreed to pay for it before the film was exposed and the negative taken; and thirdly, that the negative was taken in pursuance of the commission.”
“33 In exactly the same way as when exploring whether Mr Davies was employed, and posing the question whether he ever placed himself under an obligation to the company to work as an employee certain hours, or produce designs, the answer was a clear “no”, so the answer as to whether he ever placed himself under an obligation at all to his company before he produced the designs to produce those designs is a clear “no”
“I can also at this point deal with the question whether the plaintiff is the owner of the copyright in the engraving as I have found it. It is obvious from what I have said that no servant of the plaintiff company made any stereos or anything else bearing any degree of originality from which that design was produced. I do not regard the sketches of Mr. Arnold as having sufficient originality in their form of expression to be entitled of themselves to this copyright. The original contribution came from Mr. Wood and his staff. The stereos were in fact made by Precision Printing Plates Limited, as I have said, to the order of Kentex. It has been argued by Mr. Lloyd that copyright resides either in Precision Printing Plates as the authors of the work or in Kentex as the company which commissioned and paid for the plates. They undoubtedly did pay for the plates or rendered themselves liable to because an invoice has been produced showing this. This question depends on the correct interpretation ofsection 4(3) of the Copyright Act 1956 , which I have already read. Mr. Lloyd says that Kentex commissioned the making of the engraving and either paid for it or agreed to pay for it in money. On the face of it that is a very attractive and cogent argument. Mr. Spalding argues on the other hand that in the case of commissioned works where part of the process is sub-contracted it is the person who commissioned the ultimate article and is to pay ultimately for the process who has commissioned the making of the engraving. With a little hesitation I accept that argument. Someone who orders a particular design to be made and executed by a particular method may fairly be said to have commissioned all the necessary articles to be made even though he may be unaware of the need for them. In this case Mr. Arnold ordered the design to be executed. Of course with Mr. Arnold's expert knowledge of the trade I have no doubt that he was fully aware of what was required. But one could easily postulate other cases. In the case, say, of Miss Helen, if she had committed herself, right from the outset, of paying for the samples, then she could have been said on this argument to have commissioned the necessary articles, and it is much more doubtful whether she would have known what artifacts were required to be made in the manufacturing process.”
“34 It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of Directive 2001/29, any use of a work carried out by a third party without such prior consent must be regarded as infringing the copyright in that work (see, to that effect, judgment of27 March 2014 , UPC Telekabel Wien, C‑314/12, EU:C:2014:192, paragraphs 24 and 25). 35 Nevertheless, Article 2(a) and Article 3(1) of Directive 2001/29 do not specify the way in which the prior consent of the author must be expressed, so that those provisions cannot be interpreted as requiring that such consent must necessarily be expressed explicitly. It must be held, on the contrary, that those provisions also allow that consent to be expressed implicitly. 36 Thus, in a case in which it was questioned about the concept of a ‘new public’, the Court held that, in a situation in which an author had given prior, explicit and unreserved authorisation to the publication of his articles on the website of a newspaper publisher, without making use of technological measures restricting access to those works from other websites, that author could be regarded, in essence, as having authorised the communication of those works to the general internet public (see, to that effect, judgment of13 February 2014 , Svensson and Others, C‑466/12, EU:C:2014:76, paragraphs 25 to 28 and 31).”
“37 However, the objective of increased protection of authors to which recital 9 of Directive 2001/29 refers implies that the circumstances in which implicit consent can be admitted must be strictly defined in order not to deprive of effect the very principle of the author’s prior consent. 38 In particular, every author must actually be informed of the future use of his work by a third party and the means at his disposal to prohibit it if he so wishes. 39 Failing any actual prior information relating to that future use, the author is unable to adopt a position on it and, therefore, to prohibit it, if necessary, so that the very existence of his implicit consent appears purely hypothetical in that regard. 40 Consequently, without guarantees ensuring that authors are actually informed as to the envisaged use of their works and the means at their disposal to prohibit it, it is de facto impossible for them to adopt any position whatsoever as to such use.”
“52 Having regard to all of the foregoing considerations, the answer to the question is that Article 2(a) and Article 3(1) of Directive 2001/29 must be interpreted as precluding national legislation, such as that at issue in the main proceedings, that gives an approved collecting society the right to authorise the reproduction and communication to the public in digital form of ‘out-of-print’ books, namely, books published in France before1 January 2001 which are no longer commercially distributed by a publisher and are not currently published in print or in digital form, while allowing the authors of those books, or their successors in title, to oppose or put an end to that practice, on the conditions that that legislation lays down.”
“38 It is also important to note that the rights guaranteed to performers by Article 2(b) and Article 3(2)(a) of Directive 2001/29 are of a preventive nature, in that any act of reproduction or making available to the public of the fixations of their performances requires their prior consent. It follows that, subject to the exceptions and limitations laid down exhaustively in Article 5 of the directive, any use of such protected subject matter by a third party without such prior consent must be regarded as infringing the holder’s rights (see, to that effect, judgments of16 November 2016 , Soulier and Doke, C‑301/15, EU:C:2016:878, paragraphs 33 and 34, and of7 August 2018 , Renckhoff, C‑161/17, EU:C:2018:634, paragraph 29 and the case-law cited). 39 That interpretation is in line with the objective of providing a high level of protection for performers’ rights referred to in recital 9 of Directive 2001/29, as well as the need, mentioned, in essence, in recital 10 of that directive, for performers to obtain appropriate remuneration for the use of fixations of their performances in order to enable them to continue their creative and artistic work. 40 However, as the Court, in its judgment of16 November 2016 , Soulier and Doke (C‑301/15, EU:C:2016:878, paragraph 35), has previously pointed out with regard to authors’ exclusive rights, Articles 2(b) and Article 3(2)(a) of Directive 2001/29 do not specify how the performer’s prior consent is to be given, so that those provisions cannot be interpreted as requiring such consent to necessarily be expressed in writing or explicitly. On the contrary, it must be concluded that those provisions also allow the consent to be expressed implicitly, provided, as the Court pointed out in paragraph 37 of that judgment, that the conditions under which implicit consent may be accepted are strictly defined, in order not to deprive the very principle of prior consent of any effect.”
“39 That interpretation is in line with the objective of providing a high level of protection for performers’ rights referred to in recital 9 of Directive 2001/29, as well as the need, mentioned, in essence, in recital 10 of that directive, for performers to obtain appropriate remuneration for the use of fixations of their performances in order to enable them to continue their creative and artistic work.”
“6. THE Producers shall have the following rights in respect of any sound recordings made hereunder:— (i) The copyright throughout the world in all sound recordings of performances of musical works by the Artistes (ii) The sole and exclusive rights to manufacture/sell lease assign licence distribute or otherwise use or dispose of the said sound recordings and records tapes or other reproductions by any method now known or hereafter to be known made therefrom at such prices and under such labels and trade names as the Producers shall think fit (iii) The sole and exclusive right to perform publicly or permit the public performance of the said sound recordings including performance by broadcasting tape wire diffusion television or by any other means now known or hereafter to be known (iv) The sole and exclusive right to record or use any of the said sound recordings on records in conjunction with recordings of musical performances by other artistes (v) The right to authorise any other person firm or company to do any of the aforesaid acts in sub-clauses (i) (ii) (iii) and (iv) of clause 6.” (i) The copyright throughout the world in all sound recordings of performances of musical works by the Artistes (ii) The sole and exclusive rights to manufacture/sell lease assign licence distribute or otherwise use or dispose of the said sound recordings and records tapes or other reproductions by any method now known or hereafter to be known made therefrom at such prices and under such labels and trade names as the Producers shall think fit (iii) The sole and exclusive right to perform publicly or permit the public performance of the said sound recordings including performance by broadcasting tape wire diffusion television or by any other means now known or hereafter to be known (iv) The sole and exclusive right to record or use any of the said sound recordings on records in conjunction with recordings of musical performances by other artistes (v) The right to authorise any other person firm or company to do any of the aforesaid acts in sub-clauses (i) (ii) (iii) and (iv) of clause 6.”
“[9-36] Another important question is as to the assignability of performers’ contracts: that is to say, whether the other contracting party can assign the benefit of a contract containing a performer’s consent to the exploitation of his or her performance to a third party. There are four main classes of case: (i) those in which the agreement is silent as to whether it is assignable or not; (ii) those in which it is expressly or by necessary implication provided not to be assignable at all; (iii) those in which it is expressly or by necessary implication provided to be assignable without restriction; and (iv) those in which it is expressly or by necessary implication provided to be assignable, but with some restriction. These will be considered in turn. [9-37] If a contract is silent as to whether it is assignable by the other party or not, the general rule is that benefit of the contract may be assigned unless the contract involves personal confidence or personal skill so that the identity of the person who is to perform it is material, in which case it is not assignable. Thus it has been held that neither an author nor his publisher can assign the right to performance of the other’s obligations under a publishing agreement, although the fruits of performance, and in particular the author’s right to receive royalties, may be assigned. On this basis, most contracts which require the performer to give performances will not be assignable by the other party if the contract is silent. (This assumes that the contract does not amount to an assignment of performers’ property rights since in that event the performers’ property rights would in the absence of any restriction be assignable like any item of property. This question has already been considered above.) The position is less certain if the performer is not required to give performances, but merely consents to the exploitation of performances that have already been recorded. Even in such a case, however, it may well be possible to say that personal confidence, if not personal skill, is involved. An obvious example is if the performer is required to make personal appearances to promote the exploitation. Even in the absence of such a requirement, the performer may be able to show that artistic concerns or the effect of exploitation upon his or her reputation is such that the contract should be treated as personal.”
“WHEREAS certain disputes and differences have arisen between all of the aforesaid parties and they are desirous of settling and compromising their differences upon the terms and conditions hereinafter set forth; and WHEREAS the artists managed by Jeffery and Chandler shall be deemed to include JIMI HENDRIX, NOEL REDDING, MITCH MITCHELL, the group known as the JIMI HENDRIX EXPERIENCE, the group known as the EIRE APPARANT, the group known as the SOFT MACHINE, the group known as JESSE’s FIRST CARNIVAL, MADELINE BELL, TARO DELPHI, and the group known as THE PACE.”
“FIFTH: CHANDLER hereby assigns, conveys, transfers and sets over to J and C the entire right, title and interest, including all benefits and privileges, of CHANDLER in and to any and all agreements for publishing, record production and management, formal and informal, which have previously been entered into during Chandler’s and Jeffery’s joint association or by J and C while Chandler was a stockholder thereof.”
“WHEREAS, Jimi Hendrix, an internationally known musician and composer, is now deceased, and WHEREAS, HENDRIX has inherited from the Estate of Jimi Hendrix all of the rights which are covered in this Agreement, and WHEREAS, PMSA wishes to acquire the assets and is willing to assume the liabilities covered by this Agreement.”
“(2) As special consideration for this Agreement, PMSA agrees to assume a broad range of claims and liability which may or may not be due from HENDRIX and as to which HENDRIX wishes to be relieved of liability. PMSA assumes the following: [...] b) The Estate of Michael Jeffery (Jeffery having been the manager of Jimi Hendrix and having died in March 1973) has a claim against HENDRIX for twenty percent (20%) of all the earnings of the Estate of Jimi Hendrix domestically and for forty percent (40%) of all foreign earnings. Conversely the Estate of HENDRIX has a claim against the Jeffery Estate under a prior settlement agreement said claim amounting to approximately One Hundred and Sixty Thousand Dollars ($160,000.00 ). HENDRIX assigns to PMSA and PMSA relieves HENDRIX of all liability from the claims of the Jeffery Estate including all expenses of litigation. It is agreed that PMSA is to receive any and all rights from the Jeffery Estate which may be negotiated or result from litigation over the claims of the Jeffery Estate. PMSA guarantees that HENDRIX will receive all sums due HENDRIX from the Jeffery Estate in connection with the aforementioned settlement agreement (estimated at One Hundred and Sixty Thousand Dollars ($160,000.00 ), and HENDRIX assigns to PMSA the right to any claim which the Estate of Jeffery may have against the Estate of HENDRIX.”
“WHEREAS, Michael Jeffrey during his lifetime, entered into an agreement with Warner Brothers Records to act as producer in the production of recordings from tapes of musical performances of Jimi Hendrix, and WHEREAS, the rights of Michael Jeffrey now belong to the Estate of Michael Jeffrey, deceased, said Estate of Michael Jeffrey for good and valuable consideration hereby assigns to Interlit (British Virgin Islands) Limited all of its right, title and interest in and to said producer’s contract, and assigns to Interlit (British Virgin Islands) Limited the right to receive any and all royalties past, present or future which have not heretofore been paid to the Estate of Michael Jeffrey, deceased.”
“It is the intention of your side to make an assignment of all rights and product owned or claimed by the estate of Jeffery and its controlled entities as that ownership or claim of ownership relates to any Hendrix product, even if any specific item is inadvertently left out of this agreement. RIGHTS GRANTED BY JEFFERY 226. The rights granted by your side are as follows: 1. All claims or commissions, percentages, or proprietary interest in all Hendrix recordings produced before or after the date of death of Hendrix.”
“(13) Cohen does hereby assign to PMSA all right, title and interest of Jeffrey in the following: (a) All right, title and interest, whether by way of percentages, commissions, or proprietary interest in all recordings of Jimi Hendrix produced before or after the death of the said Jimi Hendrix. Such assigned rights include, but are not limited to all accrued and future royalties, and all unpaid claims or audit rights from past or future audits in connection with the distribution of Hendrix recordings. [...] (g) All right, title and interest in any recorded tape or motion picture film of the performance or image of Hendrix, whether or not the same are now known to exist and wherever the name may be situated.”
“(20) Cohen warrants that he has the right and ability to make the assignments called for in this agreement, and the authority to and is fully authorised to enter into and execute this agreement on behalf of Jeffrey and with the written consent and approval of the Estate of Jeffrey, deceased, in Great Britain and on behalf of all entities over which Jeffrey has actual control, and to thereby bind all of the aforementioned parties.”
“(3) GRANT OF RIGHTS: For valuable consideration, receipt of which it hereby acknowledges, and subject to Interlit, fulfilling its obligation as set forth in paragraph 4 below, PMSA hereby grants to Interlit all rights and benefits acquired by PMSA from James A. Hendrix pursuant to the provisions of the agreements between James A. Hendrix and PMSA, dated February 8th, 1974 and March 1st, 1974 collectively called the “Hendrix Agreements.”
“8. Either party hereto may assign all rights and obligations hereunder provided only that prior written notice shall be given to the other, and the parties shall remain expressly primarily liable at all times.”
“4.20 Dissolved or Defunct Affiliates. Defendants Presentaciones Musicales, S.A., a Panamanian corporation (“PMSA”) and Auteursrechtenmaatschappij B.V a Netherlands corporation ("ARM") have both been liquidated and dissolved and are no longer in existence; PMSA transferred all of its Rights Contracts and Rights in the Hendrix Properties to Interlit and ARM; and ARM transferred all of its Rights Contracts and Rights in the Hendrix Properties to Elber. Mr. Branton represents and warrants that the Law Corporation is now inactive and insolvent and its corporate powers, rights and privileges have been suspended, and that the Law Corporation does not hold or claim, and has never held or claimed, any interest of any kind in the Hendrix Properties.”
“1.4 Creation of the Company. Plaintiff shall form one or more companies (collectively, the “Company”) in anticipation of Plaintiff’s and the Defendants’ transfer to the Company of rights in and/or claims to the Hendrix Properties.”
“(3) The rights conferred by this Part apply in relation to performances taking place before the commencement of this Part; but no act done before commencement, or in pursuance of arrangements made before commencement, shall be regarded as infringing those rights.”
“(1) Except as otherwise expressly provided, nothing in these Regulations affects an agreement made before19th November 1992 . (2) No act done in pursuance of any such agreement after commencement shall be regarded as an infringement of any new right.”
“(3) In this Part a “new right” means a right arising by virtue of these Regulations, in relation to a copyright work or a qualifying performance, to authorise or prohibit an act. The expression does not include- (a) a right corresponding to a right which existed immediately before commencement, or (b) a right to remuneration arising by virtue of these Regulations.” (a) a right corresponding to a right which existed immediately before commencement, or (b) a right to remuneration arising by virtue of these Regulations.”
“(1) Nothing in these Regulations affects any agreement made before22nd December 2002 . (2) No act done after commencement, in pursuance of an agreement made before22nd December 2002 , shall be regarded as an infringement of any new or extended right arising by virtue of these Regulations.”
“42. Secondly, a party who is in a position to rely upon consent given by the performer in question does not need to rely on section 180(3). Where consent is relied upon, the ambit of the consent is critical. It would be very odd if section 180(3) could be relied upon to circumvent the limits on any consent given by the performer. Yet the effect of Sony’s argument is that the ambit of the performer’s consent is immaterial. In saying this, I am not intending to exclude the application of section 180(3) in some circumstances (such as the example of a distributor of illicit recordings postulated in Performers’ Rights at 5-108). 43. Thirdly, section 180(3) has nothing to do with exhaustion of rights. If a performer’s rights have been exhausted on ordinary principles (for example, a performer’s reproduction and distribution rights will be exhausted in relation to a particular CD whose manufacture and sale the performer has consented to), section 180(3) is not required. If the performer’s rights have not been exhausted on ordinary principles (for example, the performer’s making available right, which is not exhausted by a previous making available of the same recording of the same performance), section 180(3) does not provide for exhaustion.”
“41. I cannot accept this argument for the following reasons. First, the words “in pursuance of” plainly require some nexus between the allegedly infringing acts and the “arrangements” relied upon. On Sony’s argument no nexus at all would be required. The party committing the allegedly infringing acts could be a complete stranger to the arrangements in question (as indeed, on Sony’s pleaded case, Sony is). This would eviscerate the rights conferred by Part II of the 1988 Act.”
“Where before commencement- (a) the owner or prospective owner of copyright in a literary, dramatic, musical or artistic work has authorised a person to make a copy of the work, or (b) the owner or prospective owner of performers' rights in a performance has authorised a person to make a copy of a recording of the performance, any new right in relation to that copy shall vest on commencement in the person so authorised, subject to any agreement to the contrary.”
“27.103 The performer is entitled to the new rights (ie the property rights) unless he had died before1 December 1996 , in which case the person who was entitled to exercise the non-property performers’ rights is entitled, but if this is the performer’s personal representative any damages he recovers by virtue of the property rights devolve as part of the performer’s estate notwithstanding the fact that they did not vest in him on the performer’s death. However, where the owner or prospective owner of a performers’ right had authorised another to make a copy of a recording of the performance before1 December 1996 , the new rights in relation to that copy only vest in the person authorised. This allows the authorised person to distribute, rent or lend the copy without infringing. It would not allow him to make further copies because they would be indirect copies of the original recording and therefore an infringement of the new reproduction right in respect of that recording.”
“Where the owner or prospective owner of performers' rights in a performance authorised a person to make a copy of a recording of that performance before commencement of the 1996 Regulations, any new right in relation to that copy vests in that person on commencement unless there is an agreement to the contrary.In Experience Hendrix LLC v Purple Haze LtdHart J left open the question whether the copy must have been made before commencement. It is submitted that the answer to this question is clearly yes. The words "in relation to that copy" mean that this exception is very narrow indeed. Thus it does not entitle the beneficiary to make or distribute new copies of the recording.”
“the interesting questions which were argued before me, first, as to whether the reproduction right was a ‘‘new right’’ for Regulation 31 purposes as opposed simply to a right ‘‘corresponding’’ to the original s.183 right (see the definition in reg.25(3)), and, secondly, as to whether the copies referred to in reg.31 are restricted to copies made before commencement.”
“38.It seems to me that Regulation 31 includes some very specific wording. For example, the use of definite article ''the" coupled with the use of relative pronouns such as ''that" for example "that copy" must mean something. Copinger does not unpack this but both Arnold and Laddie on analysis say it creates a very narrow exception in relation to the performance rights limited to the copy. That would not assist Mr Hill. For Mr Hill, a wider interpretation of Regulation 31 appears to be necessary. Whilst Mr Moody-Stuart accepted that the very narrow approach adopted by Arnold LJ may be too narrow, he did not accept that the decision was binary and that it was either the Copinger approach or the Arnold approach. It seems to me that whatever the ultimate position, the use of the definitive article and the relative pronouns suggests some intended limitation on the scope of the regulation. I am bound to conclude that the precise scope of Regulation 31 is not suitable for summary determination. It is not an appropriate issue on which to grasp the nettle. It seems to me that given the competing texts and my view on the wording of Regulation 31, some limitation is intended, and it is a point that would benefit from proper consideration based on actual facts and considered argument as to its scope and context in that context.”
“29 What is meant by the always speaking principle is that, as a general rule, a statute should be interpreted taking into account changes that have occurred since the statute was enacted. Those changes may include, for example, technological developments, changes in scientific understanding, changes in social attitudes and changes in the law. Very importantly it does not matter that those changes could not have been reasonably contemplated or foreseen at the time that the provision was enacted. Exceptionally, the always speaking principle will not be applied where it is clear, from the words used in the light of their context and purpose, that the provision is tied to an historic or frozen interpretation. A possible example (referred to by Lord Steyn in R v Ireland at[1998] AC 147 , 158) is The Longford (1889) 14 PD 34 where the word “action” in a statute was held not to be apt to cover an Admiralty action in rem: at the time the statute was passed, the Admiralty Court “was not one of His Majesty’s Courts of Law”
“580. I agree with Getty Images that the “always speaking principle” is of assistance in these circumstances. Stability does not suggest that the statute was intended to be “frozen” in time and I consider that modern storage methods in intangible media amount to a fresh set of facts which fall within the same genus of facts as those to which the original expressed policy has been formulated. The fresh set of facts arises by reason of the prevalence in the modern world of intangible electronic storage which has been brought about by enormous strides in technology since the date of commencement of the CDPA. The purpose of the Act – the protection of copyright owners – would, in my judgment, be fulfilled by an interpretation which encompassed modern technology.”
“WHEREAS, I, NOEL REDDING, previously performed as a professional musician as a part of a group known professionally as “ARE YOU EXPERIENCED”, in which said JIMI HENDRIX was the lead performer, and WHEREAS, said performances consisted of personal appearances, recording sessions, personal appearance performances which were recorded, and personal appearance performances which were filmed, and WHEREAS, I have heretofore made certain claims and filed certain lawsuits against the Estate of JIMI HENDRIX, deceased, in the City of New York, State of New York, United States of America, and against Warners Brothers Records in Los Angeles, California, United States of America, and I have further made certain claims against Warner Brothers Pictures arising out of its intended use of my sound and likeness in a proposed documentary film on the life of Jimi Hendrix, and WHEREAS, it is my desire to settle all of the said claims. I ,therefore, for myself, my heirs, executors and administrators, in consideration of the sum of One Hundred Thousand ($100,000.00 ) Dollars to me paid by the Estate of JIMI HENDRIX, deceased, the receipt of which is hereby acknowledged, do by this instrument agree as follows:”
“1. I hereby release the Estate of JIMI HENDRIX, deceased, “ARE YOU EXPERIENCED”, a corporation, the stock of which is owned by the Estate of JIMI HENDRIX, deceased, Warner Brothers Records, and any and all other record companies throughout the world with whom JIMI HENDRIX in his lifetime, or the Estate of JIMI HENDRIX, deceased, have entered into contracts or agreements for the distribution and sale of recordings of JIMI HENDRIX on which I performed, from any and all liability or responsibility to me to account for any royalities or compensation to me in connection with said recordings. I further covenant not to sue any such record companies for compensation arising out of distribution of such recordings. By this release I acknowledge full settlement of any compensation which I may claim in connection with earnings on said recordings in the past, as well as any earnings which might result in the future, both in the United States and throughout the rest of the world.”
“3. This release goes to any recordings which may be released or mastered in the future as well as those already in release and goes to world-wide rights. 4. I further agreed that my attorneys are instructed to enter dismissals with prejudice and stipulations for discontinuance of any and all actions which I have heretofore caused to be filed in any court in any jurisdiction of the world.”
“Nothing contained herein shall in any way be deemed a waiver of or with prejudice to my claim and/or claims as against Yameta Corporation, a Bahamian Corporation, or its successors in interest assignees or its officers and directors.”
“IT IS HEREBY STIPULATED AND AGREED, by and between COVINGTON, HOWARD, HAGOOD & HOLLAND, ESQS, as attorneys for the Defendant and JEROME B. FLEISCHMAN, ESQ. Attorney for the Plaintiff NOEL REDDING, parties to the above entitled action, that whereas no party to this Stipulation is an infant or incompetent person for whom a Committee has been appointed and no person not a party to this Stipulation has an interest in the subject matter thereof, the above entitled action, be and the same hereby is discontinued, insofar as it alleges causes of action on behalf of said NOEL REDDING, without costs to either party hereto as against the other. The causes of action alleged on behalf of the said NOEL REDDING are discontinued with prejudice. This Stipulation may be filed without further notice with the Clerk of the Court.”
“WHEREAS, I, JOHN GRAHAM MITCHELL, previously performed as a professional musician in a group known professionally as "THE JIMI HENDRIX EXPERIENCE" in which the said JIMI HENDRIX was the lead performer; and WHEREAS, said performances consisted of personal appearances, recording sessions, personal appearance performances which were recorded, and personal appearance performances which were filmed; and WHEREAS, I have heretofore made certain claims and filed a certain lawsuit against the ESTATE OF JIMI HENDRIX, deceased, and against a corporation, Are You Experienced Ltd ., a corporation fully owned and/or controlled by the ESTATE OF JIMI HENDRIX, said lawsuit having been instituted in the Supreme Court of the State of New York, County of New York, United States of America; and WHEREAS, it is my desire to settle all of said claims as against the ESTATE OF JIMI HENDRIX its successors and/or assigns and Are You Experienced Ltd ., its successors and/or assigns, and other persons and/or entities as hereinafter set forth. I, therefore; for myself, my heirs, executors and administrators, successors and assigns, in consideration of the sum of Two Hundred Forty-Seven Thousand Five Hundred ($247,500.00 ) Dollars, the receipt of which is hereby acknowledged, in hand paid (by the the ESTATE OF JIMI HENDRIX, deceased ) on my instructions as follows,$17,500 to Stevens II. Weiss, Esq. and$15,000 to Phillips, Nizer, Benjamin, Krim & Ballon (for legal fees and disbursements) and$215 , 000 to Schecter & Epstein Special Account, do by this instrument agree as follows:”
“1. I hereby release the ESTATE OF JIMI HENDRIX, deceased, its successors and/or assigns, Are You Experienced, Ltd ., its successors and/or assigns and any and all record companies or other entities with whom Said JIMI HENDRIX, his Estate, or their successors or assigns may have contracted in the past, or may contract in the future (excepting those reservations which are specifically set forth in paragraph 6 below) for the distribution and sale of records embodying performances of JIMI HENDRIX on which I performed, including any soundtrack recordings from any and all liability or responsibility to account to me for or pay royalties or other compensation to me in connection with any such recordings. Further, I covenant, promise and agree not to sue the ESTATE OF JIMI HENDRIX, its successors and/or assigns, Are You Experienced, Ltd ., its successors and/or assigns nor any such entities or record companies for compensation arising out of the distribution of any recordings made pursuant to such contracts or agreements.”
“2. By this release, I acknowledge full settlement of any compensation which I may have claimed, now claim or in the future may claim in connection with earnings on said recordings in the past, as well as any earnings which might result in the future from the sale of such recordings.”
“3. I hereby release the ESTATE OF JIMI HENDRIX, its successors and/or assigns and Are You Experienced, Ltd. , its successors and/or assigns from any and all claims which I may have for the use of my likeness and sound in connection with a motion picture based on the life of JIMI HENDRIX, produced and distributed by and through Warner Bros. Pictures, including any sound track recordings from said film.”
“4. I further covenant with the ESTATE OF JIMI HENDRIX, its successors and/or assigns and Are You Experienced, Ltd ., its successors and/or assigns forever to refrain from instituting or in any way aiding any claim, demand, action or cause of action for damages, expenses or compensation against said Estate and said corporation in connection with my performance or performances as a part of the group known as "The Jimi Hendrix Experience" or as a part of or in connection with any other recordings embodying any performance of the decedent, JIMI HENDRIX.”
“5. This release and covenant is made by me after negotiations in which I have been represented by counsel of my choice and is made by me on the advice of counsel and is not dependent upon any facts now known nor which may hereinafter be discovered.”
“6. Specifically excepted, reserved and excluded from this release and covenant not to sue are whatever claims and rights, if any, I, JOHN GRAHAM MITCHELL, may now have against the following: Warner Bros. Pictures with respect to my appearance in a certain motion picture entitled "JIMI HENDRIX, Barclay Records, Track Records, EMBER RECORDS, YAMETA COMPANY LTD. , WARNER BROS. RECORDS solely with respect to production services, MICHAEL JEFFERY and the ESTATE OF MICHAEL JEFFERY, CHAS. CHANDLER, MICHAEL JEFFERY and CHAS. CHANDLER doing business in any form (whether corporate, joint venture, partnership or otherwise). Such reservation of rights is not deemed or to be construed as any acquiescense or agreement by the ESTATE OF JAMES M. HENDRIX, its successors and/or assigns, or Are You Experienced, Ltd ., its successors and/or assigns, that I have any rights against such companies and other entities set forth herein. Nor is such reservation of rights to be deemed to be in any way in derogation of any rights which the ESTATE OF HENDRIX, its successors and/or assigns, Are You Experienced, Ltd., its successors and/or assigns may have with respect to any companies and entities set forth herein.”
“7. I further agree and understand that the word "Recordings" as used herein includes discs, tape recordings, cassettes, audio visual cartridges, and any other means or modes now known and used or hereafter developed and used for the reproduction of sound and sound synchronized with visual images.”
“8. I further agree that my attorneys are instructed to enter stipulations for discontinuance with prejudice of the said action now pending in the New York County Supreme Court and any other actions or suits which I may have heretofore caused to be filed against the ESTATE OF JIMI HENDRIX and/or Are You Experienced, Ltd. in any jurisdiction throughout the world.”
“IT IS HEREBY STIPULATED that: 1. The appeal of John Graham Mitchell from an order of the Supreme Court, New York County, dated July 16, 1974, which appeal now is pending before the Appellate Division of the New York State Supreme Court, First Department, be and hereby is withdrawn with prejudice and without costs to either party: and 2. Whereas neither plaintiff John Graham Mitchell nor defendants are infants or incompetents, the above-captioned action be and hereby is discontinued as between said plaintiff and defendants, with prejudice, and without further costs to either party as against the other.”
“(3) The court’s approach to conflicts of expert evidence is to resolve the conflicts in the same way that it approaches other conflicts of fact (Morgan Grenfell & Co Ltd v SACE[2001] EWCA Civ 1932 , at [48] (Clarke LJ)). (4) In doing so, the court must bear in mind the purpose for which the evidence of foreign law is given: “This is to predict the likely decision of a foreign court, not to press upon the English judge the witness’s personal views as to what the foreign law might be” (MCC Proceeds Inc v Bishopsgate Investment Trust plc [1999] CLC 417, 424–425 (Evans LJ)). (5) In the light of this, the function of an expert witness on foreign law is: (i) to inform the Court of the relevant contents of the foreign law; identifying statutes or other legislation and explaining where necessary the foreign court’s approach to their construction; (ii) to identify judgments or other authorities, explaining what status they have as sources of the foreign law; and (iii) where there is no authority directly in point, to assist the English judge in making a finding as to what the foreign court’s ruling would be if the issue was to arise for decision there (ibid, p 424).”
“87. On balance, I believe that under New York law, a release could theoretically discharge claims that do not exist at the time the release is executed, provided that the language of the release clearly and unambiguously expresses the parties’ intent to include precisely such claims. Absent such language, I do not believe a release would bar such claims.”
“The question of whether an intellectual property settlement agreement includes new uses is analogous to the traditional question of whether a release includes unknown claims (i.e., claims based on unknown pre-release conduct or unknown consequences of pre-release conduct). The new use doctrine addresses the question of whether the parties contemplated a use of the copyrighted work even though that use had yet to be invented at the time of the release.”
“125. New York law enforces releases that clearly and unequivocally cover claims in the future. I have opined above that New York courts would rely on the “new use” jurisprudence to conclude that a covenant not to sue includes claims based on future legal rights if it contains specific language broad enough to include those claims. Although New York courts require no more than finding that a license includes such broad language in order to find that it includes the new use, a judicial finding that the post-settlement creation of those rights—or at least those kinds of rights—was foreseeable by the parties and/or experienced members of the relevant industry at the time the release was executed provides additional, independent support for the same conclusion. Moreover, as discussed above, a New York court has already recognized the legal enforceability of a settlement agreement’s express language releasing not only claims “hereafter … revived in the future” but also claims “hereafter existing … whatsoever in law.” “Claims hereafter existing whatsoever in law” are claims based on future legal rights. 126. As I explained above, two lines of authority from caselaw support the view that a New York court would enforce a clear covenant not to sue based on a future legal right. First, the retroactivity jurisprudence in Becker and Ianelli emphasizes the priority that New York courts place on the fairness and finality of settlements to justify New York’s rejection of the retroactive application of post-settlement legal changes to settlements. And the Bensky court’s recognition, in dicta, of the legal enforceability of settlement agreements that release “claims hereafter existing … whatsoever in law” provides even stronger authority that a covenant not to sue can include claims based on future legal rights. Second, the reasoning in the “new use” jurisprudence suggests New York courts would conclude that a covenant not to sue includes claims based on future legal rights if it contains specific language broad enough to include those claims. And again, although New York courts require no more than such a finding that a license includes such broad language to hold that it includes the new use, a judicial finding that the post-settlement creation of those rights—or at least those kinds of rights—was foreseeable by the parties and/or experienced members of the relevant industry at the time the release was executed provides additional, independent support for the same conclusion.”
“The defendant urges, however, that the general release executed by Roberts extinguished any and all rights and claims which the employer might have had, including a claim to the patent or to the shop right. Although the effect of a general release, in the absence of fraud or **510 mutual mistake, cannot be limited or curtailed (see Lucio v. Curran, 2 N.Y.2d 157, 161, 157 N.Y.S.2d 948, 951; Kirchner v. New Home Sewing Mach. Co., 135 N.Y. 182, 188, 31 N.E. 1104, 1106), its meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of. In the case before us, the defendant, without the knowledge of his employer, applied for the patent in July of 1950. The replevin action, commenced some months earlier, was settled and general releases exchanged in April, 1951, more than a year before the patent was issued to the defendant. When the releases were executed, it is clear, the parties were solely concerned with settling the controversy then being litigated, the ownership of machinery in the employer's possession, a subject having no relation to the invention or the patent. Indeed, not only was no patent then in existence, but the employer was not even aware that one had been applied for. In the right of such facts, the Appellate Division was fully justified in concluding that Roberts' release covered and barred only those matters about which there had been some dispute *300 (see Simon v. Simon, 274 App.Div. 447, 451, 84 N.Y.S.2d 307, 310), not a possible future claim by the employer that he owned the patent or had a shop right to practice the inventions.”
“Unfortunately, when we turn to state law, we find that it offers little assistance. Two other situations must be distinguished. This is not a case like Manners v. Morosco, 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590 (1920), cited with approval, Underhill v. Schenck, 238 N.Y. 7, 143 N.E. 773, 33 A.L.R. 303 (1924), in which an all encompassing grant found in one provision must be limited by the context created by other terms of the agreement indicating that the use of the copyrighted material in only one medium was contemplated. The words of Bartsch's assignment, as we have shown, were well designed to give the assignee the broadest rights with respect to its copyrighted property, to wit, the photoplay. ‘Exhibit’ means to ‘display’ or to ‘show’ by any method, and nothing in the rest of the grant sufficiently reveals a contrary intention.1 Nor is this case like Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 188 N.E. 163 (1938), in which the new medium was completely unknown at the time when the contract was written. Rather, the trial court correctly found that, ‘During 1930 the future possibilities of television were recognized by knowledgeable people in the entertainment and motion picture industries,’ though surely not in the scope it has attained. While Kirke La Shelle teaches that New York will not charge a grantor with duty of expressly saving television rights when he could not know of the invention's existence, we have found no case holding that an experienced businessman like Bartsch is not bound by the natural implications of the language he accepted when he had reason to know of the new medium's potential.”
“With Bartsch dead, his grantors apparently so, and the Warner Brothers lawyer understandably having no recollection of the negotiation, any effort to reconstruct what the parties actually intended nearly forty years ago is doomed to failure. In the end, decision must turn, as Professor Nimmer has suggested, The Law of Copyright 125.3 (1964), on a choice between two basic approaches more than on an attempt to distill decisive meaning out of language that very likely had none. As between an approach that ‘a license of rights in a given medium (e.g., ‘motion picture rights') includes only such uses as fall within the unambiguous core meaning of the term (e. g., exhibition of motion picture film in motion picture theaters) and exclude any uses which lie within the ambiguous penumbra (e.g., exhibition of motion picture film on television)’ and another whereby ‘the licensee may properly pursue any uses which may reasonably be said to fall within the medium as described in the license,’ he prefers the latter. So do we. But see Warner, Radio and Television Rights 52 (1953). If the words are broad enough to cover the new use, it seems fairer that the burden of framing and negotiating an exception should fall on the grantor; if Bartsch or his assignors had desired to limit ‘exhibition’ of the motion picture to the conventional method where light is carried from a projector to a screen directly beheld by the viewer, they could have said so. A further reason favoring the broader view in case like this is that it provides a single person who can make the copyrighted work available to the public over the penumbral medium, whereas the narrower one involves the risk that a deadlock between the grantor and the grantee might prevent the work's being shown over the new medium at all.”
“In Farrington v. Harlem Sav. Bank, 280 N.Y. 1, 19 N.E.2d 657, it was established that a release could be made covering both known and unknown injuries, ‘provided the agreement was fairly and knowingly made’ (Id., at p. 4, 19 N.E.2d, at p. 657). This limitation on releases for unknown injuries, first applied to a claim that the plaintiff thought he was signing a mere receipt for money to pay a doctor's bill, was applied in other cases of fraud (Wheeler v. State of New York, 286 App.Div. 310, 143 N.Y.S.2d 83; ***517 Scheer v. Long Is. R.R. Co., 282 App.Div. 724, 122 N.Y.S.2d 217). Fraud, however, had long been a ground for setting aside a release (see *567 Fleming v. Brooklyn Hgts. R.R. Co., 95 App.Div. 110, 88 N.Y.S. 732). The requirement of an ‘agreement fairly and knowingly made’ has been extended, however, to cover other situations where because the releasor has had little time for investigation or deliberation, or because of the existence of overreaching or unfair circumstances, it was deemed inequitable to allow the release to serve as a bar to the claim of the injured party (see, e.g., Duch v. Giacquinto, 15 A.D.2d 20, 222 N.Y.S.2d 101; Landau v. Hertz Drivurself Stas., 237 App.Div. 141, 260 N.Y.S. 561; Castenada v. Ruderman, 48 Misc.2d 321, 264 N.Y.S.2d 744).”
“It is true that a general release is governed by principles of contract law. There is little doubt, however, that its interpretation and limitation by the parol evidence rule are subject to special rules. These ***513 rules are based on a realistic recognition that releases contain standardized, even ritualistic, language and are given in circumstances where the parties are sometimes looking no further than the precise matter in dispute that is being settled. Thus, while it has been held that an unreformed general release will be given its full literal effect where it is directly or **390 circumstantially evident that the purpose is to achieve a truly general settlement (Lucio v. Curran, 2 N.Y.2d 157, 157 N.Y.S.2d 948, 139 N.E.2d 133), the cases are many in which the release has been avoided with respect to uncontemplated transactions despite the generality of the language in the release form (e.g., Cahill v. Regan, 5 N.Y.2d 292, 184 N.Y.S.2d 348, 157 N.E.2d 505; Mitchell v. Mitchell, 170 App.Div. 452, 456, 156 N.Y.S. 76, 79; see, also, Simon v. Simon, 274 App.Div. 447, 449, 84 N.Y.S.2d 307, 309; Haskell v. Miller, 221 App.Div. 48, 222 N.Y.S. 619, affd. 246 N.Y. 618, 159 N.E. 675; Rubinstein v. Rubinstein, Sup., 109 N.Y.S.2d 725, 732, affd. 279 App.Div. 1073, 113 N.Y.S.2d 277, affd. 305 N.Y. 746, 113 N.E.2d 149; 49 N.Y.Jur., Release and Discharge, ss 19, 31, 34, 35, 46).”
“I think we've been through this, and I can repeat if it helps the court. I think New York law encourages us to examine the context of a release. Whether that is encouraging us to seek an ambiguity first or just look at the context, you know, may be a distinction without a difference. But I wouldn't say it's wrong that we need some sort of ambiguity. Q. It's a very simple point, though, Mr Cohen. I don't understand why you continue to dance around it. The principle is, you start with the contract, and if it's not ambiguous, you interpret it. You don't include parol evidence unless there's an appeal to it. A. I wouldn't say it's a simple point. I don't want to complicate matters. I don't want to make New York law sound more complicated than it already is, and I certainly don't want to present difficulties to this court. But yes, generally speaking we find an ambiguity first. Q. Not just generally speaking. It's a requirement of the introduction of parol evidence. A. Generally speaking, we find an ambiguity first, and that may even be true for releases. I just wanted to be clear that under New York law, we are encouraged to look at the context. It may be that, yes, we should be searching for ambiguities in order to look for that context. I don't think a release that was perfectly clear on its face would require too much context, if such a release exists.”
“So the judge is certainly allowed to consider that this release arose out of litigation in which particular claims were being adjudicated. Mangini even goes so far as to say, in some cases, they can consider the negotiations that gave rise to the settlement. Now, in my view, the strict plain meaning rule would not allow in evidence of negotiations. In fact, there's lots of cases where they don't. But I think what the court is saying is we're more receptive here. We're a little looser with the plain meaning rule when we're looking at releases and covenants that are part of settlements (inaudible) that are arising out of litigation, and so we want to understand, that's what the court means when it says that, "the parties are sometimes looking no further than the precise matter in dispute that is being settled". Now, how could a court consider the precise matters in the dispute that's being settled without taking a look at the precise matters in dispute being settled? And if the plain meaning rule prohibited a judge from even seeing that, you just have to look at the release and nothing else in the world, then they wouldn't be able to do it. So I think all Mangini is saying is the court -- if one were otherwise inclined to construe the plain meaning rule, to exclude the evidence that includes the dispute before the parties that gave rise to the settlement, we are saying, on the Court of Appeals, that's not true. They can look at that settlement. They can look at that litigation. That's my best effort.”
“Finally, perhaps the most important difference between a covenant not to sue and a release the effectiveness of the agreement as a bar to a subsequent action by a breaching promisor has long been recognized as being invariably a distinction without a difference. Since equity would not permit specific performance of a covenant not to sue, an action would lie for its breach. The measure of the aggrieved promisee's damages, however, would except for attorneys fees, be equal to his original liability on the underlying claim. Thus, in order to prevent a circuity of actions, where a covenant to sue was given in perpetuity and did not involve joint tortfeasors, it would be deemed to operate as a release, a complete and permanent bar to the underlying action. Simpson on Contracts (2d ed., 1965) 291. What then, is the conceptual distinction which differentiates a release from a covenant not to sue? A release is retrospective; a covenant not to sue, like any other covenant, is prospective. A release discharges an existing obligation or cause of action. The consideration for the release acts as a substitute for performance under the prior obligation; the obligation, thus satisfied, is extinguished and a cause of action can therefore no longer exist. 15 Williston on Contracts, 3d ed., s 1820; 5A Corbin on Contracts s 1238.”
“Without intending to determine the ultimate issues, but merely to set forth some guidelines to aid in that determination, we observe that in general terms a covenant not to sue is an agreement by one having a present right of action against another not to sue to enforce such right. A covenant not to sue is not a release since it is not a present abandonment of a right or claim, but merely an agreement not to enforce an existing cause of action. Such distinction although technical is nevertheless clear. Thus, the party possessing the right of action is not precluded thereby from thereafter bringing suit; however, he may be compelled to respond in damages for breach of the covenant. In the instant case it does not clearly appear at present as to whether or not anything other than a possible right of action existed in favor of plaintiffs at the time of execution of the agreement.”
“Neither the availability of damages for breach of a covenant not to sue, in general, nor the availability of damages in the form of attorneys’ fees, in particular (see generally, Mighty Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21, 416 N.Y.S.2d 559, 389 N.E.2d 1080), were at issue in that case.”
“Less than one week before oral argument, Pfizer covenanted not to sue Apotex for infringement of U.S. Patent No. 4,743,450. A covenant not to sue, such as that provided by Pfizer, moots an action for declaratory judgment. See Amana Refrigeration, Inc. v. Quadlux, Inc., 172 F.3d 852, 855 (Fed.Cir.1999) (“[A] covenant not to sue ... is sufficient to divest a trial court of jurisdiction over a declaratory judgment action.”). As a result, the judgment and opinion of the district court are vacated and the case is remanded with instructions to dismiss for lack of jurisdiction.”
“Q. And where there's no cross claim for breach of the covenant not to sue, what's the position? A. I suppose the court would -- if the party suing in breach of the covenant not to sue proceeds, and the other side doesn't raise the defence, my guess is the court would say, you know, if the time has expired to raise that defence, then there is a point in going forth with it, of course.”
“Priority moved to dismiss the complaint insofar as asserted against it, contending that the assignment of the contract terminated its obligations and liability under the Agreement. In an order dated February 1, 2010, the Supreme Court denied Priority’s motion, holding that while the assignment of the Agreement to Global was valid, the assignment did not release Priority from liability under the Agreement. This was because, in order for the assignor (here, Priority) to be relieved from continuing liability after an assignment, the other contracting party (here, Taylor) not only had to consent to the assignment, but also had to accept the assignee (here, Global) in place of the assignor, thereby releasing the assignor (here, Priority) from liability under the Agreement. It is undisputed that Taylor did not consent to the assignment and did not accept Global in Priority’s place. Accordingly, the Supreme Court held that the assignment did not release Priority from liability under the Agreement.”
“Assuming arguendo the soundness of defendant's argument that the covenant is affirmative in nature, it does not necessarily follow that it is therefore unenforcible in an action against a subsequent grantee, as defendant contends. ‘The burden of affirmative covenants may be enforced against subsequent holders of the originally burdened land whenever it appears that (1) the original covenantor and covenantee intended such a result; (2) there has been a continuous succession of conveyances between the original covenantor and the party now sought to be burdened; and (3) the covenant touches or concerns the land to a substantial degree.’”
“In sum, “New York courts rarely find worldwide restrictions reasonable in any context.”
“(a) Without an order. Any party asserting a claim may discontinue it without an order 1. …….. 2. By filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action; or”
“Whatever reason ICOP had to discontinue the action against SICS, its effect was to prejudice Morse Diesel, which had a right to continue the deposition of the president of SICS, Kenneth Gordon, within 30 days of trial. We do not necessarily embrace the holding of the Appellate Division, Third Department case on which SICS relies, Barclays Bank of N.Y. v M & M Elecs. Assoc. (185 AD2d 580 [1992]), because it overlooks a substantive requirement of CPLR 3217 (a) and relegates its violation to a technical defect. Moreover, the court in Barclays overlooked the absence of one party’s signature to a stipulation of discontinuance because no prejudice befell the party whose signature was lacking. Morse Diesel, in stark contrast, would be unfairly prejudiced in the loss of its ability to compel the conclusion of the deposition of the president of SICS, in which it had already invested substantial time and expense. Furthermore, the court had already ordered, and all parties had agreed, that the deposition would be concluded within 30 days prior to trial.”
“A dismissal with prejudice arising out of an agreement of the parties is an adjudication of all matters contemplated in the agreement, and a court order which memorializes this agreement bars further proceedings. Here appellant removed this case to the federal court on ERISA preemption grounds and alleged in his motion to dismiss in that court that ERISA precluded appellee's recovery. The district court ordered plaintiff's action dismissed with prejudice in accordance with the stipulation. Accordingly, res judicata precluded present appellees from raising the ERISA claim in a later federal suit. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 344, 78 L.Ed.2d 311 (1983). Appellees' complaint simply substitutes claims of ERISA violations for the previous claims of a violation of state labor law; it relies on the same operative facts. Because the identical facts pleaded in the prior state action form the basis for the new ERISA complaint, and the ERISA claim was in fact pleaded by appellant in the prior action (appellant's motion to dismiss and removal of petition), the stipulation dismissing plaintiff's “action” with prejudice must be read to have dismissed all claims. Res judicata principles preclude appellees from raising in a later action those claims that would have been decided had the first action been fully litigated. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984); Murphy v. Gallagher, 761 F.2d 878, 879 (2d Cir.1985).”
“The commissioner's invocation of res judicata is without basis. It is, of course, true that if both requests are viewed as being a single proceeding, the dismissal for failure to prosecute of petitioner's first appeal would bar him from now seeking review of the same issues (see **120 Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575 [dismissal for failure to prosecute interlocutory appeal on choice-of-law issue precluded its consideration on appeal after final judgment] ). However, petitioner's first request for information was made under the 1974 version of the Freedom of Information Law. The 1977 act materially changed the parties' rights in that it accorded to the agency the discretion to provide access to sensitive information rather than excluding it entirely (compare Public Officers Law, § 87, subd. 2, with former § 88, subd. 6, as enacted by L. 1974, ch. 578, § 2), and by placing on the agency the burden of proving the propriety of denying access to information (compare Public Officers Law, § 89, subd. 4, par. [b], with former § 88, subd. 7, as enacted by L. 1974, ch. 578, § 2). The request now being reviewed is, thus, a separate and independent request made pursuant to the new law. As such, it is a “transaction” wholly distinct from the first request. Consequently, applying the transactional analysis approach to res judicata questions adopted in this State (see Matter of Reilly v. Reid, 45 N.Y.2d 24, 29, 407 N.Y.S.2d 645, 379 N.E.2d 172; Restatement, Judgments 2d [Tent Draft No. 5], § 61), the parties are not bound by the determination made on petitioner's first request.”
“62. In the present case the Claimants’ copyright claim is a claim by two of the former partners of JHE against Sony, which was never a partner. It is therefore the external perspective that matters, and from that perspective the relationship between the former partners is irrelevant. Even viewed from the internal perspective, however, this is not a claim to a share of partnership assets. On the Claimants’ case the legal title to the copyrights has either always been, or since 1974 been, jointly owned by Hendrix, Redding and Mitchell or, since their deaths, their respective successors in title. During the partnership, Hendrix, Redding and Mitchell will have held the legal titles as partnership assets. Upon the dissolution of the partnership, any of them (or in Hendrix’s case, his estate) could have insisted upon the legal titles being sold and the net proceeds being applied towards payment of any debts and liabilities with any surplus being distributed. There is no suggestion that this happened, however. By virtue of section 23 of the 1980 Act it is now far too late for any partner (or their successor in title) to bring an action for an account so as to force a sale, accounting and distribution. Thus legal title to the copyrights remains, on the Claimants’ case, jointly owned by the partners’ respective successors in title. There is no claim that the beneficial title is held differently.”
“(a) Without an order. Any party asserting a claim may discontinue it without an order 2. By filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed the attorneys of record for all parties, provided that no party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action; or”
“On the basis of these facts, it was submitted by Mr. Morritt that this was a clear case of an implied licence. The test to be applied, he submitted, was an objective one: viz. whether, viewing the facts objectively, the words and conduct of the alleged licensor, as made known to the alleged licensee, in fact indicated that the licensor consented to what the licensee was doing. That test I accept as correct.”
“NR and/or MM, and/or their respective heirs and/or successors in title to any rights relevant to the claims herein granted an implied, irrevocable licence for such exploitation, which is binding on the Claimants as their successors who are estopped from purporting to terminate such licence.”
“7. But there is a crucial difference in principle between the exercise of an undoubted right of property and resort for its protection to discretionary remedies. In so far as Mr Fisher may seek to restrain what the other joint owner may do in the exercise of its share of the copyright by means of injunctions, he will be subject to the court's discretion. Unconscionable delay may well have a part to play in the court's decision whether or not he is entitled to such a remedy. But it would be a very strong thing, in the absence of a proprietary estoppel, to deny him the opportunity of exercising his right of property in his own share of the copyright. 8. The law of property is concerned with rights in things. The distinction which exists between the exercise of rights and the obtaining of discretionary remedies is of fundamental importance in any legal system. There is no concept in our law that is more absolute than a right of property. Where it exists, it is for the owner to exercise it as he pleases. He does not need the permission of the court, nor is it subject to the exercise of the court's discretion. The benefits that flow from intellectual property are the product of this concept. They provide an incentive to innovation and creativity. A person who has a good idea, as Mr Fisher did when he composed the well-known organ solo that did so much to make the song in its final form such a success, is entitled to protect the advantage that he has gained from this and to earn his reward. These are rights which the court must respect and which it will enforce if it is asked to do so. 9. The second and third declarations which the trial judge made were directed to the exercise of rights, not the granting of discretionary remedies. The majority in the Court of Appeal were, for understandable reasons, reluctant to offer the court's assistance to someone who had delayed for so long in asserting his claim. But it appears that, when they decided to deny him these further declarations which were designed to give effect to the rights that flowed from his co-authorship of the work which was found on unassailable grounds to have been established by the trial judge, they overlooked this fundamental distinction. I agree with my noble and learned friend that, leaving equity on one side as one must, there were no grounds in law for setting these declarations aside.”
“63. Fourthly, in so far as the respondents' argument is put on the basis of estoppel, they would have to establish that it would be in some way unconscionable for Mr Fisher now to insist on his share of the musical copyright in the work being recognised. As Robert Walker LJ said in Gillett v Holt[2001] Ch 210 , 225D, “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine” of estoppel. Given that their case at each of the three stages is based on the fact that Mr Fisher did not raise his entitlement to such a share, one would expect the respondents to succeed in estoppel only if they could show that they reasonably relied on his having no such claim, that they acted on that reliance, and that it would be unfairly to their detriment if he was now permitted to raise or to enforce such a claim. As was also said in Gillett[2001] Ch 210 , 232D, the “overwhelming weight of authority shows that detriment is required” although the “requirement must be approached as part of a broad inquiry” into unconscionability. 64. Fifthly, laches is an equitable doctrine, under which delay can bar a claim to equitable relief. In the Court of Appeal, Mummery LJ said that there was “no requirement of detrimental reliance for the application of acquiescence or laches” -[2008] EWCA Civ 287 , para 85. Although I would not suggest that it is an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches, in my opinion. In Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 , 239, the Lord Chancellor, Lord Selborne, giving the opinion of the Board, said that laches applied where “it would be practically unjust to give a remedy”, and that, in every case where a defence “is founded upon mere delay … the validity of that defence must be tried upon principles substantially equitable.”
“(1) All persons jointly entitled to the remedy claimed by a claimant must be parties unless the court orders otherwise. (2) If any such person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise. (3) This rule does not apply in probate proceedings.”
“One co-owner can sue the other co-owners for infringement of copyright for doing any of the acts restricted by the copyright which have been committed without that co-owner’s licence. This is because the reference in s.16(2) to acts done without the “licence” of the copyright owner is to be taken as a reference to all the copyright owners. One co-owner therefore has no right to exercise the rights of a copyright owner alone, not even if that person accounts to the other co-owners for a share of any profits: the rights of the other co-owners are not limited to an account. One co-owner can, however, sue third parties for infringement and obtain an injunction and damages without joining the other co-owners. Probably, one tenant in common can only recover damages for the injury done to that tenant in common’s share.”
“56. It is well established that each owner of a copyright can sue for infringement without joining the other owners: see Copinger and Skone James on Copyright (19th ed) at 4-203 and the authorities cited. It is doubtful whether this long-standing substantive rule of copyright law can have been changed byCPR rule 19.3 . In any event, the judge (despite not having been referred to the relevant authorities) declined to strike out the claim for non-compliance with rule 19.3 due to the Claimants’ failure to join any party said to own Hendrix’s share of the copyrights, and Sony has not appealed that part of his decision.”
“37. Mr Howe KC submitted that strike out is justified because the Claimants have deliberately decided not to join Experience and/or Authentic, despite knowing that those companies have been asserting their rights over the Recordings for over 50 years. If the Claimants are truly maintaining that those companies are not the joint owners, they must identify who they say the joint owners are and join them to the proceedings. Mr Howe KC submitted that the court should not make a declaration as to the ownership of the copyright in the Recordings without all the potential joint owners being before the court and so bound by the declaration. 38. However, I do not believe the position is so dramatic. The court clearly has a discretion underCPR 19.3 and I think it is appropriate to see if Experience and/or Authentic wish to be joined to these proceedings. If they do so wish, that can easily be done. If they do not, and the Claimants are ultimately successful in establishing their joint ownership of the copyright, then that declaration can be used for the purpose of pursuing Sony for infringement of their shared interest in the copyright. Sony is able to defend the claim by providing evidence or running legal arguments that the Claimants do not have any interest in the copyright of the Recordings. I do not think that it causes Sony any prejudice that the other alleged joint owners of the copyright have not been joined to these proceedings.”
“33. It seems to me that the rule is directed at protecting defendants from being subject to subsequent claims for the same relief. In Roche, the plaintiff was jointly entitled to the repayment of a loan with two other persons, as the monies that were paid in respect of the loan came out of an account that was in the joint names of those three persons. Slade J did not strike out the proceedings, but stayed them, so that the plaintiff could establish the position of the other two persons and see whether they were claiming any interest in the loaned money or whether they disavowed any such interest. The plaintiff was maintaining that he was the sole beneficial owner of the moneys loaned to the defendant. Slade J was concerned that, the position was not clarified, and they were not joined to the proceedings, the defendant may remain “exposed to future claims at their suit”. 34. In this case Sony is not at risk of a claim by Experience and/or Authentic as to their ownership of the copyright in the Recordings. Indeed, Sony derives its title to exploit the Recordings from Experience’s and/or Authentic’s purported ownership of the copyright. Furthermore, Experience and Authentic, together with SME, began the proceedings in New York against the Claimants asserting their ownership of all the rights in the Recordings. They are effectively on the same side and I do not see that they are prejudiced by not being parties to this claim. Having said that, if they wish to be joined, I do not imagine that there would be any objection to this.”