Editions Musicales Alpha S.A.R.L. v Universal Music Publishing Ltd & Ors [2017] EWHC 1058 (IPEC)

Case No IP-2015-000167[2017] EWHC 1058 (IPEC)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY ENTERPRISE COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 10/05/2017
Before
HIS HONOUR JUDGE HACON
Between
EDITIONS MUSICALES ALPHA S.A.R.L.ClaimantUNIVERSAL MUSIC PUBLISHING LIMITEDDefendantsSONY/ATV MUSIC PUBLISHING LIMITEDDefendantRAY DORSETDefendantIN THE SUMMERTIME LIMITEDDefendantASSOCIATED MUSIC INTERNATIONAL LIMITEDDefendant
Richard Hanke (instructed by Gordon Dadds LLP) for Fifth DefendantRoman Poplawski (acting on direct instructions) for Third DefendantHearing Hearing date: 23 February 2017
JudgmentJudge Hacon :Introduction
[1]In 1970 the band Mungo Jerry recorded and released a song called In the Summertime. It went to number one in the charts in many countries of the world, including the UK. Mungo Jerry became famous, as did the frontman and songwriter of the band, Ray Dorset. According to Mr Dorset, 30 million units of In the Summertime have been sold worldwide.[2]Mungo Jerry had subsequent hits. One of these was a song called Alright, Alright, Alright (“Alright”), released in 1973.[3]Thirty eight years later, in September 2011 the claimant (“EMA”), a French music publishing company, brought an action against the first two defendants (“Universal” and “Sony/ATV”) seeking a declaration that EMA owned the copyright in Alright. EMA also sought an injunction and damages, alleging that EMA’s copyright had been infringed. On 1 June 2012 Mr Dorset was joined as third defendant along with the fourth and fifth defendants (“ITSL” and “AMI” respectively).[4]In August 2012 AMI brought an additional claim against Mr Dorset seeking an indemnity against Mr Dorset in respect of any sums it was held liable to pay to EMA.[5]The trial in the main action was due to be heard in a window from 10 March 2014. On 7 March 2014 EMA settled its claim for liability against Mr Dorset by means of a written agreement dated 7 March 2014 (“the EMA Settlement Agreement”). By two further settlement agreements, dated 29 July 2014 and 26 March 2015, EMA and Mr Dorset also settled EMA’s claims for costs and damages.[6]EMA went on to agree terms of settlement with Universal and Sony/ATV by an agreement dated 28 July 2015, and with AMI by an agreement dated 7 July 2015. The claims by EMA against Universal, Sony/ATV, Mr Dorset and AMI were all formally stayed by an order dated 29 September 2015.[7]Eliot Cohen, who is a director of AMI, said in his first witness statement that ITSL became a deadlocked company through lack of agreement between its two directors, of whom Mr Dorset was one, and that judgment in default had been entered against it by EMA. No mention was made of ITSL before me and I will assume that I need consider it no further.[8]Following all the settlements and default judgment against ITSL, there remained only AMI’s additional claim against Mr Dorset. That claim was the subject of the present trial. Background facts The OML Agreement

Background facts

[9]The business relationship between Mr Dorset and Mr Cohen goes back at least to 1970. On 28 May 1970 Mr Dorset entered into an agreement (“the OML Agreement”) with Our Music Limited (“OML”), a music publishing company owned by Mr Cohen and two colleagues, Barry Murray and Ellis Elias. Under the terms of the OML Agreement for a period of five years Mr Dorset was to submit his original music and lyrics to OML. If accepted, copyright in the work submitted vested in OML, otherwise Mr Dorset was free to take his compositions elsewhere.[10]Some time in 1973 Mr Dorset fell out with Mr Cohen. It appears that there followed a period of discussions during which the OML Agreement remained in force, covering July 1973 when Alright was released. The OML Agreement was terminated by a written agreement dated 1 November 1973, releasing all parties of their respective obligations. The parties also agreed that the copyright in certain songs listed in a schedule would remain the property of OML and that OML would remain obliged to pay Mr Dorset income due to him from those songs on the terms set out in the OML Agreement. Alright was not among the songs listed. Mr Cohen’s evidence was that he knew nothing about the song at that time.

The origin of the song Alright

[11]There was a transcript of an interview given in 1973 by Mr Dorset to Nicky Horne, a disc jockey at the BBC. It included this:
“Interviewer: Finally let’s talk about your new record ‘Alright, Alright Alright’. Who wrote it? RD: [Laughter] It’s a French song. A guy called Jacques Dutronc recorded it … recorded it about 6 years ago. It’s called in French…it’s called ‘Et Moi Et Moi Et Moi’ … … I heard it at a party. Just before ‘In the Summertime’ was released in fact. … I thought it was really good and when I went over to France a little while later I said to the guy from the record company you know can you send us a copy over and he sent me a copy over and then we found that…a sort of English version with…like someone had written some lyrics to it and so I just changed the arrangement and things around a bit and we decided on this one.” … I heard it at a party. Just before ‘In the Summertime’ was released in fact. … I thought it was really good and when I went over to France a little while later I said to the guy from the record company you know can you send us a copy over and he sent me a copy over and then we found that…a sort of English version with…like someone had written some lyrics to it and so I just changed the arrangement and things around a bit and we decided on this one.”
[12]In Mr Dorset’s second witness statement in these proceedings, dated 14 January 2014, he acknowledged hearing Et Moi over and over again at a party hosted by one of Peter Sellers’ make-up artists. He said the party was in 1972.

EMA’s complaint

[13]Shortly before Alright was released in July 1973, the record came to the attention of Jacques Wolfsohn who was then Artistic Director (equivalent to head of A&R) of the Disques Vogue record label in France. The owner and chairman of Disques Vogue was Léon Cabat. Mr Wolfsohn and Mr Cabat had a further commercial association in that both were joint owner and managing director of EMA.[14]Mr Cabat played Mungo Jerry’s record to Mr Wolfsohn because he believed the music to be a copy of the song Et Moi, Et Moi, Et Moi (“Et Moi”). This had been composed by Jacques Dutronc (music) and Jacques Lanzmann (lyrics in French) and, broadly consistent with what Mr Dorset had told Mr Horne, released in August 1966 as Mr Dutronc’s debut single. It reached number 2 in the French charts and, according to Mr Wolfsohn, was one of EMA’s most important copyrights.[15]Mr Wolfsohn apparently agreed with Mr Cabat that the music of Et Moi had been copied by the writer of Alright. In France the record was released on the Pye label. Mr Wolfsohn said that Mr Cabat called Louis Benjamin, who was then head of Pye Records in London. There followed a meeting between Mr Wolfsohn, Mr Benjamin and Barry Murray. Mr Murray was not only part owner of OML, he was also a producer at Pye and at that time Mr Dorset’s manager.

Settlement of EMA’s complaint

[16]This meeting resulted in a written agreement signed in Paris on 29 May 1973 (“the 1973 Assignment”). Under the terms of the 1973 Assignment Mr Dutronc, was to be identified as the composer of Alright, Mr Lanzmann was to be identified as one author of the lyrics (despite having apparently contributed nothing to the lyrics) together with an individual given the name ‘Joe Strange’, who was to be credited as co-author. The copyright in both the music and lyrics of Alright were assigned to EMA. By implication, Mr Murray and Mr Benjamin had accepted that the music of Alright had been copied from Et Moi.[17]Mr Wolfsohn’s evidence was that the 1973 Assignment was signed by Mr Murray, which implies that he signed as ‘Joe Strange’, although no explanation was given for this by Mr Wolfsohn.[18]There followed a letter dated 6 June 1973, signed by Mr Murray (under his own name) and Mr Wolfsohn, which appears to have had the effect of a written agreement by which half the proceeds received by EMA from the exploitation of Alright would go to Caesar Music Limited, Mr Murray’s publishing company, and a further one eighth to the ‘writer’ of the song, left unidentified.[19]In letter dated 15 June 1973 from ‘Joe Strange’ to EMA, Mr Strange authorised EMA to collect royalties due from exploitation of Alright from royalty collecting societies, on behalf of Mr Strange. The royalties were to be paid to Caesar Music. The signature by Mr Strange is the same as that used by Mr Murray in the 1973 Agreement.

Mr Dorset confirmed as joint author of the lyrics of Alright

[20]As I have said, Mungo Jerry’s record of Alright was released in July 1973, in the UK on the Dawn label. The physical label on the single identified the words and music as being by Jacques Dutronc, Jacques Lanzmann and Joe Strange.[21]By a letter dated 25 June 1973 Mr Wolfsohn registered Joe Strange’s rights as joint-author of Alright with SACEM, the French royalty collecting society. There is good reason to believe that at least some of these royalties were paid to Mr Dorset. I was shown royalty statements from EMA to “Joe Strange (Ray Dorset)” for sums due from the exploitation of Alright.[22]In 1975 Mr Dorset and his manager, Mr Murray parted company, not on good terms. One possible reason was that Mr Murray had falsely registered some of Mr Dorset’s songs with PRS, one of the British collecting societies, under Mr Murray’s own name as sole composer. Mr Murray either came clean or Mr Dorset otherwise found out. They both wrote to PRS and asked it to rectify the position. In a letter to Mr Dorset dated 5 July 1976, PRS informed Mr Dorset that several songs had, at his and Mr Murray’s request, been re-registered in Mr Dorset’s name. The exception, PRS said, was Alright, in relation to which PRS had understood Jacques Dutronc to be the composer and the lyrics to have been authored by Jacques Lanzmann and Mr Murray. PRS proposed to change this only to the extent that Mr Dorset would be substituted joint author of the lyrics in place of Mr Murray. There was no record of Mr Dorset disputing this.

Mr Cohen returns to assist Mr Dorset

[23]In 1978 Mr Dorset set up a company of his own, Kareen Music Limited, as the vehicle through which he published his music. In the mid-1980s the company changed its name to Satellite Music Limited (“Satellite”).[24]Around 1990 Mr Cohen returned to give business advice to Mr Dorset for the first time since the termination of the OML Agreement. Mr Cohen was, at least by then, a director of AMI. In 1990 Mr Dorset sold 50% of Satellite to Mr Cohen’s wife, who also became co-director with Mr Dorset.

The back-dated registration of Alright with PRS and MCPS

[25]Mr Dorset’s evidence was that in around 1993 he realised that he had not received royalties due to him for Alright and spoke about it to Mr Cohen. The solution they devised, it seems, was retrospectively to register Mr Dorset with PRS and MCPS as the sole composer of Alright. MCPS is another of the British collecting societies, responsible for what are known as mechanical royalties arising from use of recorded music. I was shown a form, marked ‘MCPS Copy’, which appears to be an application to PRS and MCPS to register the performing and mechanical rights in Alright with PRS and MCPS. Mr Dorset is identified as the sole writer. The proposed split of performing rights royalties is 50/50 between Mr Dorset and Satellite. 100% of the mechanical royalties are said to be due to Satellite. Strikingly, the form is dated 11 June 1972. It was signed by both Mr Dorset and Mr Cohen and, as is common ground, was deliberately back-dated – in fact to a date before Alright had even been written and before Satellite existed. Mr Cohen did not deny signing the form, but disclaimed any recollection of discussing it with Mr Dorset and gave no explanation as to why it was sent. Plainly the form was inconsistent with earlier registrations with PRS and the ownership of the relevant rights. Nonetheless, it appears that PRS and MCPS accepted the application and the registration was successful.

The Satellite Assignment

[26]By around the end of 2007 disagreements once again had had broken out between Mr Dorset and Mr Cohen. On 14 February 2008 Mr Dorset, Mr and Mrs Cohen, AMI, Satellite and three other of the Cohens’ companies entered into an agreement to resolve their various disputes. As part of the settlement, Satellite, Mr Dorset and AMI entered into a further agreement on 14 February 2008 (“the Satellite Assignment”). Under its terms Satellite assigned, or purported to assign, copyrights in about 350 musical works to Mr Dorset and AMI, in the proportions 75% to Mr Dorset and 25% to AMI. Performance rights were separately assigned: performance income by way of royalties from PRS were to be split equally between Mr Dorset and AMI. The copyright works assigned included Alright, which was listed in a Schedule C. This schedule was stated to contain musical compositions owned or controlled by Satellite and written in whole or in part by Mr Dorset.

The agreements with Universal and Sony/ATV

[27]In an agreement dated 10 September 2008 Mr Dorset, through ITSL, exclusively licensed to Universal, as publisher, or purported to license, his 75% of the copyright in his songs, including Alright.[28]Mr Hanke told me that following the Satellite Assignment, AMI similarly entered into a publishing agreement with Sony/ATV in relation to AMI’s 25% share of the copyright in Mr Dorset’s songs, including Alright. I don’t think that is right, although Mr Poplawski did not challenge this part of AMI’s case and indeed in his skeleton Mr Poplawski asserted that AMI licensed its ‘Satellite content’ to Sony. I was not directed to the agreement with Sony/ATV during the trial; its relevant terms were undisputed and given little attention.[29]After the trial I could find no copy of such an agreement in the quite extensive documents. Mr Cohen refers to it in his evidence as “an administrative agreement between AMI and [Sony/ATV]”, but supplies no date. In paragraph 24 of the AMI’s additional claim it is referred to an “agreement with [Sony/ATV] to exploit certain compositions”, again with no date. Mr Dorset’s pleaded response to paragraph 24 (his paragraph 6) does not dispute the existence of such an agreement but says nothing about it.[30]There was an agreement dated 20 October 1995 between AMI and Sony Music Entertainment (UK) Limited (“SME”), a copy of which was in the trial bundles. Under that agreement AMI granted to SME an exclusive licence under the copyright in all compositions owned or controlled by AMI during the term of the agreement. SME acted as publisher, used all reasonable endeavours to exploit the compositions and paid agreed sums arising from such exploitation to AMI. The term expired in 1998 but the agreement appears to have been renewed several times since then.[31]I will assume, as appears to have been taken for granted by the parties, that the term of the agreement with SME had been sufficiently extended such that it was still in force on 14 February 2008, the date of the Satellite Assignment. I will further assume that under the terms of AMI’s agreement with SME, on that date AMI’s 25% share of the copyright acquired under the Satellite Assignment was automatically licensed exclusively to SME. Finally I will assume that it makes no difference that SME and Sony/ATV are distinct entities. Possibly Sony/ATV is the successor in title to SME or alternatively some internal arrangement was reached between them. These assumptions are consistent with both sides’ submissions at trial and are consistent with the documents in the trial bundles.

EMA’s complaint of infringement of copyright

[32]I return to the chronology as I have come to understand it. Until 2010 EMA had unsurprisingly continued to assume that it owned the entire copyright in Alright. But in that year EMA discovered that there was a potential challenge to its ownership. The Israeli collection society had received a request to register Mr Dorset as the sole writer. The request had come from the administrator of the catalogue of Universal. This led to a chain of further investigation. In May 2011 EMA found out that Alright had been used in the soundtrack to a BBC film, ‘West is West’, for which EMA had received no royalties. EMA was told that the producers of the film had obtained synchronisation licences from Universal and Sony/ATV for £4,000. EMA went on to find out that Alright had been used in other films and in commercials around the world, again licensed by Universal and Sony/ATV, in many instances for substantially larger sums.[33]On 6 June 2011 solicitors acting for the UK licensee of EMA, Alpha Music Publishing UK Limited, wrote to BBC Films alleging that their use of Alright in ‘West is West’ infringed EMA’s copyright in the song. The letter was passed to Sony/ATV who passed it to AMI. On 16 June 2011 solicitors acting for AMI wrote to solicitors acting for Mr Dorset, enclosing a copy of the letter to BBC Films. They sought Mr Dorset’s comments as a matter of urgency.[34]Mr Dorset’s solicitors responded to AMI’s solicitors in a letter dated 20 June 2011:
“We are instructed by our client that Alright, Alright, Alright is not an English language version of the French composition entitled Et Moi, Et Moi, Et Moi. Mr Dorset has confirmed that he is the original composer of Alright, Alright, Alright which was created by him without copying any other source. Consequently, Mr Dorset views the allegations made by Alpha Music Publishing UK Limited as misconceived. We understand that the song has been registered with the MCPS and PRS for approximately 20 years and no objection has been made (by any third party) to the exploitation of copyright in the composition during this period. Consequently, our client finds it curious that such allegations have only just been made by Alpha Music Publishing UK Limited. We understand that Mr Cohen of your client is aware of the origins of this composition (having previously had day-to-day control of Satellite Music Limited and appointed himself as a director of the company) and will verify the same to you as and when he has fully recovered from his recent operation.”

The claim by EMA in the present proceedings

[35]EMA remained unsatisfied. In September 2011 EMA brought its action for infringement of copyright, ultimately against Universal, Sony/ATV, Mr Dorset, ITSL and AMI.[36]Mr Dorset’s pleaded Defence was that he wrote Alright, that it was not copied from Et Moi, that he had not signed and was not party to the 1973 Assignment by which the copyright in Alright had purportedly been assigned to EMA and that therefore EMA did not own the copyright in Alright. By way of an alternative argument, Mr Dorset’s Defence stated that if he had been a party to the 1973 Assignment, he had not received the royalties due to him under that agreement and he counterclaimed for the sums due.[37]AMI pleaded that it had no direct knowledge of who wrote Alright, but relied on the Satellite Assignment by which, it said, it had received 25% of the copyright. AMI also relied on the letter of 20 June 2011 from Mr Dorset’s solicitors. AMI accordingly did not admit that EMA owned the copyright in Alright.[38]As I have indicated, shortly before the trial, on 7 March 2014, EMA settled its claims by means of the 2014 Settlement Agreement and subsequent agreements.[39]Among these further agreements was one dated 7 July 2015 by which EMA’s claim against AMI was settled. The terms included payment of £33,600 by AMI to EMA.

The 2014 Settlement Agreement

[40]The 2014 Settlement Agreement contained the following terms:
“2. SETTLEMENT 2.1 Ownership 2.2.1 [Mr Dorset] hereby acknowledges and accepts the validity of, and affirms, the [1973 Assignment] as having been executed on his behalf and as having been valid to assign copyright in ‘Alright’ to [EMA] on 29 May 1973 and [Mr Dorset] agrees that he shall promptly upon [EMA’s] request execute all such further documents as may be necessary to confirm [EMA’s] right and title to and ownership of any and all worldwide copyright or related rights in and to Alright (and all extensions and renewals thereof). … 2.2 Admission Of Copyright Infringement [Mr Dorset] hereby acknowledges and accepts that [Mr Dorset] has by his dealings with the copyright in Alright infringed [EMA’s] rights in and to and ownership of the copyright in Alright and Et Moi to include but not limited to infringement of UK copyright by [Mr Dorset] by reason of his involvement with and participation in: 2.2.1 the registration with MCPS/PRS in or around 1993 of Alright as a work the copyright in which was controlled by Satellite and as solely written and composed by [Mr Dorset]; 2.2.2 Satellite’s purported assignment of 75% of the copyright in Alright to [Mr Dorset] and of 25% of the copyright in Alright to [AMI] pursuant to [the Satellite Assignment] dated 14 February 2008; … 3.3 Credit Without prejudice to Jacques Lanzmann’s right to be (a) registered with PRS, MCPS, SACEM and affiliated societies as co-author; (b) to be credited as such in the manner has been to date; and (iii) to receive payment pursuant to [the 1973 Assignment] [EMA] acknowledges that [Mr Dorset] wrote the English lyrics of Alright and [EMA] shall use all reasonable endeavours to procure that on future exploitation of Alright the credit will be: ‘Alright Alright Alright written by Jacques Dutronc, Jacques Lanzmann and Ray Dorset’ … ” 2.2.1 [Mr Dorset] hereby acknowledges and accepts the validity of, and affirms, the [1973 Assignment] as having been executed on his behalf and as having been valid to assign copyright in ‘Alright’ to [EMA] on 29 May 1973 and [Mr Dorset] agrees that he shall promptly upon [EMA’s] request execute all such further documents as may be necessary to confirm [EMA’s] right and title to and ownership of any and all worldwide copyright or related rights in and to Alright (and all extensions and renewals thereof). … 2.2 Admission Of Copyright Infringement [Mr Dorset] hereby acknowledges and accepts that [Mr Dorset] has by his dealings with the copyright in Alright infringed [EMA’s] rights in and to and ownership of the copyright in Alright and Et Moi to include but not limited to infringement of UK copyright by [Mr Dorset] by reason of his involvement with and participation in: 2.2.1 the registration with MCPS/PRS in or around 1993 of Alright as a work the copyright in which was controlled by Satellite and as solely written and composed by [Mr Dorset]; 2.2.2 Satellite’s purported assignment of 75% of the copyright in Alright to [Mr Dorset] and of 25% of the copyright in Alright to [AMI] pursuant to [the Satellite Assignment] dated 14 February 2008; … 3.3 Credit Without prejudice to Jacques Lanzmann’s right to be (a) registered with PRS, MCPS, SACEM and affiliated societies as co-author; (b) to be credited as such in the manner has been to date; and (iii) to receive payment pursuant to [the 1973 Assignment] [EMA] acknowledges that [Mr Dorset] wrote the English lyrics of Alright and [EMA] shall use all reasonable endeavours to procure that on future exploitation of Alright the credit will be: ‘Alright Alright Alright written by Jacques Dutronc, Jacques Lanzmann and Ray Dorset’ … ”
[41]Thus, in his settlement with EMA Mr Dorset acknowledged that he had not written Alright by himself, only the lyrics, that by the 1973 Assignment the copyright in the music and lyrics of Alright had been assigned to EMA and that EMA remained the owner of those copyrights.

AMI’s Additional Claim against Mr Dorset

[42]AMI’s case for compensation from Mr Dorset was pleaded in its additional claim as follows:(1) On a true construction of the Satellite Agreement Mr Dorset had warranted to AMI, expressly or by implication, that (i) Satellite was, at the time of entry into the Satellite Agreement, the owner of copyright in Alright; and (ii) Mr Dorset was the composer of Alright.(2) Alternatively, it was an implied term of the Satellite Assignment that Mr Dorset would indemnify AMI in respect of any losses sustained by reason of the assignment of Alright or by reason of his breach of warranty.(3) In entering into the agreement with Sony/ATV, AMI relied on Mr Dorset’s representations, in particular that Satellite owned the copyright in Alright.(4) The representations made by Mr Dorset in the Satellite Agreement were false and in addition Mr Dorset breached the warranties contained in the Satellite Agreement.(5) AMI was accordingly entitled to an indemnity in respect of the sums that AMI was obliged to pay to EMA to settle EMA’s claim against it. Further or alternatively AMI was entitled to damages.[43]At the start of the trial I asked Mr Hanke to explain how Mr Dorset’s representations related to AMI’s entering into an agreement with Sony/ATV. Mr Hanke applied to amend paragraph 24 of the Fifth Defendant’s Defence and Amended Particulars of Additional Claim against the Third Defendant. This paragraph contained the allegation summarised in subparagraph (4) of the preceding paragraph. Mr Poplawski did not object to the amendment so I allowed it. Paragraph 24 of the pleading became:
“24. In entering into the Agreement with [Sony/ATV] to exploit certain compositions, which included [Alright], and/or in entering the Satellite Assignment, AMI relied upon Mr Dorset’s representations (set out in paragraph 2.2 above).”
The representations in paragraph 2.2 were that (i) Satellite owned the copyright in Alright and (ii) Mr Dorset composed Alright. By the amendment, AMI relied on those representations leading to AMI entering into the Satellite Agreement, as well as the agreement with Sony/ATV.

Mr Dorset’s pleaded Defence to the Additional Claim

[44]Mr Dorset’s Amended Defence contained a further volte face: Mr Dorset accepted that in the 2014 Settlement Agreement he had acknowledged the assignment of the copyright in Alright to EMA, in the 1973 Assignment, and had also accepted the validity of that assignment. He now said that this was false: he had written Alright by himself and Satellite had owned the copyright in the song at the time the time of the Satellite Assignment. Accordingly Mr Dorset was not in breach of any representation, warranty or implied term contained in the Satellite Assignment.

Defence advanced at trial

[45]At trial Mr Poplawski did not distinguish between the various ways that AMI put its case – which was a reasonable and efficient approach. He made the following assertions of fact, which he said were supported by the evidence:(1) Mr Cohen was responsible for the registration of Alright with PRS and MCPS after the copyright in the song had been assigned to EMA.(2) Mr Cohen was responsible for putting Alright into Schedule C of the Satellite Assignment of 2008.(3) Mr Cohen was a de facto director of Satellite at the time of the Satellite Assignment.[46]Mr Poplawski argued that at the date of the Satellite Assignment in 2008 Mr Cohen must have been fully aware that EMA had a claim to the copyright in Alright. The back-dated application to register the song with PRS, which he had signed, was proof that he recognised the need to overcome this claim.[47]Secondly, it was Mr Cohen who had included Alright in Schedule C of the Satellite Agreement. Therefore he cannot have relied on any representation by Mr Dorset that Satellite owned the copyright. The representation regarding Satellite’s ownership of the copyright in Alright came from Mr Cohen himself as de facto director of Satellite.

Findings of fact

[48]On his own account Mr Dorset heard Et Moi played repeatedly at a party hosted by one of Peter Sellers’ make-up artists. The party may have been in 1972 or, more likely, in 1970 shortly before In the Summertime was released, as Mr Dorset explained in the BBC interview in 1973. I have no doubt that the account he gave in that interview to Nicky Horne was substantially accurate: the music and arrangement of Alright was that of Et Moi “changed around a bit” by Mr Dorset. Mr Dorset wrote the lyrics.[49]Mr Dorset knew that he was credited with the collecting societies only as joint author of the lyrics. He must have known this when Alright was released because the song was stated on the label to have been written by “J. Dutronc, J. Lanzman (sic) J. Strange”. He must also have known that he would be paid J. Strange’s share of the royalties. The letter to him from PRS dated 5 July 1976 said that he would be credited as joint author in place of Barry Murray. He made no apparent complaint. Mr Dorset must also have known that his source of royalties for Alright, uniquely, came from EMA, because he was sent royalty statements by EMA solely in relation to that song. The royalty statements said that the payments were due to “Strange Joe (pseudonym) Ray Dorset”. At least one of the covering letters, dated 18 October 1979, was sent to his home address.[50]In fact Mr Dorset’s credit as merely joint author of the lyrics of Alright was not a fair reflection of what he had done. He did not write them with Mr Lanzmann. That he accepted the reduced credit and correspondingly reduced royalties suggests that he knew, or came to know of the complaint EMA had made in May 1973 and how it had been resolved.[51]I find that Mr Dorset’s contribution to the composition of Alright was the creation of the lyrics plus some adaptation of the music of Et Moi, which otherwise was copied. I also find that Mr Dorset knew that as a consequence of Et Moi having been copied, a deal had been reached with the owners of the rights in Et Moi. Under the terms of that deal EMA acquired the copyright in Alright and Mr Dorset would be credited only as joint author of the lyrics to Alright. It follows that Mr Dorset knew that he never owned the copyright to either the music or lyrics of Alright and neither did Satellite.[52]What of Mr Cohen’s knowledge? Alright was released while Mr Dorset was still signed to OML as publisher but probably after Mr Dorset had fallen out with Mr Cohen and OML. Mr Dorset admitted that when the PRS application was made in 1993 Mr Cohen did not know that Mr Dutronc and Mr Lanzmann claimed to have co-written Alright. Mr Cohen therefore cannot have known in 1973. It is likely that by this time in 1973 he was taking no interest in Mr Dorset or Mungo Jerry.[53]Mr Cohen began to assist Mr Dorset again in the early 1990s. Mr Cohen’s attention must have been drawn to Alright at that stage. Mr Dorset had become unhappy with the amount of royalties paid by EMA. The course taken was his and Mr Cohen’s ham-fisted solution: a back-dated application to PRS and MCPS to register Satellite as the sole party entitled to mechanical royalties. It seems to have worked.[54]Mr Cohen was cross-examined about the application to PRS and MCPS. He said that he was told by Mr Dorset that Mr Dorset had composed Alright, that he took Mr Dorset’s word for it and agreed that the song should be registered. Mr Cohen said that he did not remember why it was back-dated to 1972, adding that Mr Dorset must have been aware of this. The reason for the back-dating and Mr Cohen’s part in what looks like a piece of dishonesty were not resolved. But, as I have mentioned, Mr Dorset said that at this time Mr Cohen did not know that Mr Dutronc and Mr Lanzmann claimed to have co-written Alright. I therefore accept that at least Mr Cohen believed that Mr Dorset was the sole composer of the song.[55]Satellite was Mr Dorset’s company. Therefore it was reasonable for Mr Cohen to believe that Satellite owned the copyright in Alright along with Mr Dorset’s other songs. Assuming that Mr Cohen drafted Schedule C to the Satellite Assignment, it would have been reasonable for him to include Alright.[56]On 13 February 2008 Mr Dorset gave Gerard Helders written power of attorney to sign proposed settlement agreements with Mr Cohen and his wife. Mr Dorset did not attend the signing of the Satellite Assignment on 14 February 2008 but it was not in dispute that Mr Helders signed on his behalf and was entitled to do so. Mr Cohen said that on the day the Satellite Assignment was signed, several times prior to signing Mr Helders phoned Mr Dorset to approve the terms of the agreements signed and the list of compositions. Mr Dorset did not ask for any changes to the list. Mr Dorset agreed in cross-examination that he had not asked for Alright to be removed from Schedule C.[57]Mr Cohen said that he relied on Mr Dorset’s representation, implied by Mr Dorset’s approval of the inclusion of Alright in Schedule C, that Mr Dorset had written Alright and also on Mr Dorset’s representation that the copyright in the song was owned by Satellite. He added that if Mr Dorset had asked for Alright to be removed from Schedule C, that would have been done. In that case, Mr Cohen said, the Satellite Assignment would never have purported to assign 25% of the copyright in Alright to AMI and AMI would never have been a defendant in EMA’s claim. Mr Cohen was not challenged on this and I accept his evidence.[58]As I have said, Mr Dorset knew that he had not written Alright alone and, more importantly, he knew that Satellite did not own the copyright in either the music or lyrics of Alright.[59]Mr Dorset was given ample opportunity to check Schedule C and by indicating that Alright belonged in that schedule during the checking process, either expressly or by failing to state that it should be removed, he represented, immediately prior to the Satellite Assignment being signed, that Satellite owned the copyright in in Alright.

Misrepresentation

[60]AMI’s claim for misrepresentation was advanced under s.2(1) of the Misrepresentation Act 1967:
“Where a person has entered into a contract after a misrepresentation has been made to him by another party thereto and as a result thereof he has suffered loss, then, if the person making the misrepresentation would be liable to damages in respect thereof had the misrepresentation been made fraudulently, that person shall be so liable notwithstanding that the misrepresentation was not made fraudulently, unless he proves that he had reasonable ground to believe and did believe up to the time the contract was made that the facts represented were true.”
[61]I have no doubt that AMI entered into the Satellite Assignment after Mr Dorset’s misrepresentation that Satellite owned the copyright in Alright and, so far as that song was concerned, in reliance on the misrepresentation. As a result, AMI believed itself to be the recipient of 25% of the copyright in Alright and felt free to allow that 25% to be exclusively licensed to Sony/ATV, or SME, as the case may be, under the terms of the agreement with SME of 20 October 1995. It was that exclusive licence and its exploitation by Sony/ATV which led to AMI being joined as a defendant to EMA’s claim for infringement of copyright and AMI’s payment of £33,600 to EMA to settle the case.[62]AMI’s claim against Mr Dorset for misrepresentation under s.2(1) of the 1967 Act succeeds.[63]The same does not apply in relation to the misrepresentation alleged to have taken place before the agreement between AMI and Sony/ATV, or as appears to have been the case, between AMI and SME. That agreement long pre-dated Mr Dorset’s representations. In any event, Mr Dorset was not a party to the agreement with SME.

Warranty or term in the Satellite Agreement

[64]The remaining part of AMI’s case came to different ways of saying the same thing: on a proper construction of the Satellite Assignment, Mr Dorset had expressly or by implication warranted that Satellite owned the copyright in Alright.[65]The first recital and the definition of ‘Song Catalogue’ did expressly warrant that Satellite owned the copyright. There can be no doubt that Satellite, as assignor, provided that warranty. However, Mr Dorset was an assignee. He provided no express warranty on his own behalf and it is not obvious that as an assignee there was any implied warranty from him.[66]Because of the clear view I have taken with regard to AMI’s case on misrepresentation, I will take this part of AMI’s case briefly. Mr Poplawski did not challenge Mr Hanke’s proposition that if there was a warranty, it came from Mr Dorset as well as from Satellite. Mr Poplawski’s argument was that there was no warranty at all, on the grounds I have set out above. In my view there was certainly a warranty from Satellite and I therefore accept Mr Hanke’s submission that it came also as an implied warranty from Mr Dorset, the only individual who knew the truth of the matters concerned. Given my finding with regard to misrepresentation, it makes no difference.

Loss suffered by AMI

[67]It was not disputed that if Mr Dorset had not made his misrepresentations or given the implied warranty, AMI would not have become defendant in the action brought by EMA. I find that the £33,600 paid by AMI to EMA and AMI’s costs of defending that action against EMA are losses caused by the misrepresentation and breach of warranty. Mr Dorset must reimburse those sums to AMI.[68]AMI also claimed lost royalties which it would have received from the exploitation of its share of Alright. Had Mr Dorset not made the representation and warranty relied on, there would not have been even a purported assignment to AMI of 25% of the copyright in Alright. AMI would have received no royalties. AMI is not entitled to any damages under this head.