Copyright - infringement - song lyrics - measure of damages

Following an earlier decision [2001] E.M.L.R.7, [2001] F.S.R. 19, [2002] 3 C.L.383 that the lyrics of a song entitled "Jesus in a Camper Van" infringed the copyright, held by L, in the lyrics of a song entitled "I am the Way (New York Town)", it fell to be determined (1) what damages should be awarded to L on account of the infringement; (2) whether additional damages should be awarded and, if so, in what sum, and (3) whether L was entitled to a final injunction. L maintained that a clear non negotiable offer of licence had been made for the use of the lyrics at a rate of 50 per cent of all royalties earned by the song.

Held, giving judgment for L, that (1) where a copyright owner had refused to grant a licence, he was entitled to damages, possibly additional damages, and an injunction against the infringer. The same remedies were available where the licence had been refused except on terms that the intending licensee believed were unreasonable and the intending licensee had subsequently infringed, Phonographic Performance Ltd v. Maitra [1998] 1 W.L.R. 870, [1998] C.L.Y. 3425 and General Tire and Rubber Co v. Firestone Tyre & Rubber Co Ltd (No. 2) [1975] 1 W.L.R. 819, [1975] C.L.Y. 2503 considered.

If it was conceded that a form of royalty or profit sharing was the appropriate basis for damages, the basis of the assessment was a transaction as between a willing licensor and a willing licensee. In the instant case it was appropriate to assess damages on the basis of a royalty share. In calculating the rate, the degree to which material had been borrowed was relevant. Having regard to the evidence, the appropriate figure was 25 per cent of the interest; (2) there was no basis for awarding additional damages, and (3) it was appropriate to grant injunctive relief in relation to future pressings of the album containing the infringing song. However, the record company had acted reasonably in not holding up the release of the album in the circumstances. Accordingly, the relief should not extend to existing pressings of the album.

LUDLOW MUSIC INC v. WILLIAMS (no. 2), [2002] EWHC 638, [2002] E.M.L.R. 29, Pumfrey, J., Ch D.

"Current Law" June 2002