“[14] On 21st August 2NV offered Miss Henderson£1,500 for her vocal performance. She refused. [15] On21st September 2007 Miss Henderson signed a conventional music publishing agreement with Sony/ATV Music Publishing (UK) Limited whereby she assigned her copyright in her musical works (including Heartbroken) to Sony. As a result of this agreement Miss Henderson's copyright in Heartbroken was registered with the MCPS and she is or will be entitled to royalties from Heartbroken. There is a dispute between her and Mr Tawonezvi as to their respective shares in the copyright in the track as a musical work. Miss Henderson registered Heartbroken as a musical work as 100% her own. Mr Tawonezvi claims the musical work is 50% his. [16] At some point in early summer 2007 (it is not clear exactly when but it was probably before Mr Tawonezvi signed with 2NV) Miss Henderson was approached by two video directors with a view to making a video of Heartbroken. Footage was shot with Miss Henderson singing and Mr Tawonezvi acting as the DJ. On 10th September 2NV wrote to Miss Henderson objecting to the video as an unofficial promotion and threatened legal action. This video project did not go further. [17] Later in the summer a second video, created under the guidance of Mr Tawonezvi and 2NV and funded by All Around the World, was made. The video was shot in two parts, in Leeds and London. As a result of links between these individuals and 2NV, certain famous footballers, Anton Ferdinand and Micah Richards were involved. Miss Henderson participated in the shooting of this video, albeit she says under protest. Miss Henderson's music publishing contract with Sony includes a deemed consent with respect to promotional videos and Sony did and were entitled to give All Around the World consent under the music copyrights to the release of the video. Sony advised Miss Henderson to participate in the video. Miss Henderson says she was told by All Around the World that if she did not participate in the video, 2NV would use footage of other girls miming her lyrics. She felt she had no choice but to appear. [18] In its form as published, the video focuses primarily on Mr Tawonezvi. Miss Henderson does appear in it for a few short periods. She is singing (in fact miming) the track. Other girls appear in the video as well and they are singing/miming as well although Miss Henderson does so more prominently than them. [19] There was also a dispute about the sleeve design for the single of Heartbroken to be released. Mr Tawonezvi, 2NV and Miss Henderson could not agree who should take centre stage. Miss Henderson was prepared to accept a sleeve on which both their images appeared but in the end the cover image is a plain sleeve without pictures of either Mr Tawonezvi or Miss Henderson. The single is headed “T2 featuring Jodie Aysha”, which Miss Henderson accepted reluctantly. It credits the writing to “T2/Jodie Aysha” and states that the vocals are by Jodie Aysha. [20] At some point in late summer 2007 Steve Wolfe became Miss Henderson's temporary manager. Mr Wolfe sought to negotiate a deal between Miss Henderson and 2NV but no contract was ever agreed. Miss Henderson says that Mr Wolfe did not tell her (or her sister) that this is what he was doing. As far as Miss Henderson is concerned, she was talking directly to All Around the World and in particular to Cris Nuttall. Miss Henderson says that Mr Nuttall assured her that he was trying to help her and that she would get the money due to her. One of the conversations between Miss Henderson and Mr Nuttall was recorded and was available in evidence. [21] On12th November 2007 All Around the World released Heartbroken. It was a big hit. It reached No.2 in the main singles charts, stayed there for 5 weeks and overall remained in the Top 40 for 46 weeks. To date Miss Henderson has received no record royalties for All Around the World's release. Nor has she been paid for her participation in the video or for the use of her name on the artwork. All Around the World registered Mr Tawonezvi with PPL and Miss Henderson says he will collect the lion's share of the income. She says that normally the performer of a track would receive the majority of this income and a remixer or a featured artist would only receive a small share. In her view Mr Tawonezvi's position in relation to the track is as a remixer. [22] The key issue in this case is whether All Around the World's release was an infringement of Miss Henderson's performer's rights. This boils down to a simple question of whether Miss Henderson consented to the release. All Around the World say that she did and Miss Henderson says she did not. [23] Since it was released, the Heartbroken record has been earning substantial royalties for All Around the World. Under the contract with 2NV, All Around the World is obliged to pay a share of the record royalties to 2NV. As a result of this dispute, those sums are being held by All Around the World and have not passed to 2NV. Also, as a result of Mr Tawonezvi's claim to 50% of the music copyright in Heartbroken, now made via Mr Tawonezvi's publishers' EMI, PRS for Music have suspended half the monies earned. The 50% balance for music copyright royalties has been paid to Sony/Miss Henderson. [24] After Heartbroken, another song Miss Henderson had written called “So Typical” featured in discussions between her and All Around the World but those disputes do not relate to the matters I have to decide. In April 2009 Miss Henderson signed a record deal with All Around the World for a track called Pozer. She says that she now believes they were not really interested in the song but just wanted to “keep me sweet”
“[31] I derive the following principles from authorities in relation to an inquiry as to damages: (1) A successful claimant is entitled, by way of compensation, to that sum of money which will put him in the same position he would have been in if he had not sustained the wrong, see Livingstone v Rawyards Coal Co. (1880) 5 App.Cas., 25 per Lord Blackburn at 39. (2) The claimant has the burden of proving the loss, see General Tire and Rubber Company v Firestone Tyre and Rubber Company Limited[1976] RPC 197 , at 212. (3) The defendant being a wrongdoer, damages should be liberally assessed but the object is to compensate the claimant, not punish the defendant, see General Tire at p.212. (4) The claimant is entitled to recover loss that was (i) foreseeable, (ii) caused by the wrong and (iii) not excluded from recovery by public or social policy, see Gerber Garment Technology Inc v Lectra Systems Ltd[1997] RPC 443 , at 452. (5) In relation to causation, it is not enough for the claimant to show that the loss would not have occurred but for the tort. The tort must be, as a matter of common sense, a cause of the loss. It is not necessary for the tort to be the sole or dominant cause of the loss, see Gerber at p.452. (6) An inquiry will generally require the court to make an assessment of what would have happened had the tort not been committed and to compare that with what actually happened. It may also require the court to make a comparison between, on the one hand, future events that would have been expected to occur had the tort not been committed and, on the other hand, events that are expected to occur, the tort having been committed. Not much in the way of accuracy is to be expected bearing in mind all the uncertainties of quantification. See Gerber at first instance[1995] RPC 383 , per Jacob J, at 395-396. (7) Where the claimant has to prove a causal link between an act done by the defendant and the loss sustained by the claimant, the court must determine such causation on the balance of probabilities. If on balance the act caused the loss, the claimant is entitled to be compensated in full for the loss. It is irrelevant whether the court thinks that the balance only just tips in favour of the claimant or that the causation claimed is overwhelmingly likely, see Allied Maples Group v Simmons & Simmons[1995] WLR 1602 , at 1609-1610. (8) Where quantification of the claimant’s loss depends on future uncertain events, such questions are decided not on the balance of probability but on the court’s assessment, often expressed in percentage terms, of the loss eventuating. This may depend in part on the hypothetical acts of a third party, see Allied Maples at 1610. (9) Where the claim for past loss depends on the hypothetical act of a third party, i.e. the claimant’s case is that if the tort had not been committed the third party would have acted to the benefit of the claimant (or would have prevented a loss) in some way, the claimant need only show that he had a substantial chance, rather than a speculative one, of enjoying the benefit conferred by the third party. Once past this hurdle, the likelihood that the benefit or opportunity would have occurred is relevant only to the quantification of damages. See Allied Maples at 1611-1614.” (1) A successful claimant is entitled, by way of compensation, to that sum of money which will put him in the same position he would have been in if he had not sustained the wrong, see Livingstone v Rawyards Coal Co. (1880) 5 App.Cas., 25 per Lord Blackburn at 39. (2) The claimant has the burden of proving the loss, see General Tire and Rubber Company v Firestone Tyre and Rubber Company Limited[1976] RPC 197 , at 212. (3) The defendant being a wrongdoer, damages should be liberally assessed but the object is to compensate the claimant, not punish the defendant, see General Tire at p.212. (4) The claimant is entitled to recover loss that was (i) foreseeable, (ii) caused by the wrong and (iii) not excluded from recovery by public or social policy, see Gerber Garment Technology Inc v Lectra Systems Ltd[1997] RPC 443 , at 452. (5) In relation to causation, it is not enough for the claimant to show that the loss would not have occurred but for the tort. The tort must be, as a matter of common sense, a cause of the loss. It is not necessary for the tort to be the sole or dominant cause of the loss, see Gerber at p.452. (6) An inquiry will generally require the court to make an assessment of what would have happened had the tort not been committed and to compare that with what actually happened. It may also require the court to make a comparison between, on the one hand, future events that would have been expected to occur had the tort not been committed and, on the other hand, events that are expected to occur, the tort having been committed. Not much in the way of accuracy is to be expected bearing in mind all the uncertainties of quantification. See Gerber at first instance[1995] RPC 383 , per Jacob J, at 395-396. (7) Where the claimant has to prove a causal link between an act done by the defendant and the loss sustained by the claimant, the court must determine such causation on the balance of probabilities. If on balance the act caused the loss, the claimant is entitled to be compensated in full for the loss. It is irrelevant whether the court thinks that the balance only just tips in favour of the claimant or that the causation claimed is overwhelmingly likely, see Allied Maples Group v Simmons & Simmons[1995] WLR 1602 , at 1609-1610. (8) Where quantification of the claimant’s loss depends on future uncertain events, such questions are decided not on the balance of probability but on the court’s assessment, often expressed in percentage terms, of the loss eventuating. This may depend in part on the hypothetical acts of a third party, see Allied Maples at 1610. (9) Where the claim for past loss depends on the hypothetical act of a third party, i.e. the claimant’s case is that if the tort had not been committed the third party would have acted to the benefit of the claimant (or would have prevented a loss) in some way, the claimant need only show that he had a substantial chance, rather than a speculative one, of enjoying the benefit conferred by the third party. Once past this hurdle, the likelihood that the benefit or opportunity would have occurred is relevant only to the quantification of damages. See Allied Maples at 1611-1614.”
“(i) The overriding principle is that the damages are compensatory: see Attorney-General v Blake at 298 (Lord Hobhouse of Woodborough, dissenting but not on this point), Hendrix v PPX at [26] (Mance L.J., as he then was) and WWF v World Wrestling at [56] (Chadwick L.J.). (ii) The primary basis for the assessment is to consider what sum would have [been] arrived at in negotiations between the parties, had each been making reasonable use of their respective bargaining positions, bearing in mind the information available to the parties and the commercial context at the time that notional negotiation should have taken place: see PPX v Hendrix at [45], WWF v World Wrestling at [55], Lunn v Liverpool at [25] and Pell v Bow at [48]–[49], [51] (Lord Walker of Gestingthorpe). (iii) The fact that one or both parties would not in practice have agreed to make a deal is irrelevant: see Pell v Bow at [49]. (iv) As a general rule, the assessment is to be made as at the date of the breach: see Lunn Poly at [29] and Pell v Bow at [50]. (v) Where there has been nothing like an actual negotiation between the parties, it is reasonable for the court to look at the eventual outcome and to consider whether or not that is a useful guide to what the parties would have thought at the time of their hypothetical bargain: see Pell v Bow at [51]. (vi) The court can take into account other relevant factors, and in particular delay on the part of the claimant in asserting its rights: see Pell v Bow at [54]”
“An assessment of the damage caused to the claimant forms no part of an account of the profits made by the infringer and the approach adopted by the judge constituted an illegitimate amalgamation of two quite different ways of assessing compensation.”
“…this is a case where the defendants, by stealing a march based on infringement, received benefits and inflicted humiliation and loss which are difficult to compensate and difficult to assess in the normal course.”
“The phenomenon of counterfeiting and piracy leads to businesses losing turnover and market shares (loss of direct sales) which they have sometimes had difficulty acquiring, not mention the intangible losses and the moral prejudice they suffer because of the loss in terms of brand image with their customers (loss of future sales). The spread of counterfeit and pirated products in fact leads to a prejudicial downgrading of the reputation and originality of the genuine products particularly when businesses gear their publicity to the quality and rarity of their products. This phenomenon also involves additional costs for businesses (costs of protection, investigations, expert opinions and disputes) and in certain cases may even lead to tort actions against the de facto right holder of the products marketed by the counterfeiter or pirate where the proof of good faith cannot be brought.”