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	England and Wales Patents County Court
You are here: BAILII >> Databases >> England and Wales Patents County Court >> Henderson v All Around the World Recordings Ltd & Anor [2013] EWPCC 7 (13 February 2013) URL: http://www.bailii.org/ew/cases/EWPCC/2013/7.html Cite as: [2013] EWPCC 7

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IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		13/02/2013

Judge Birss :

1. The claimant, Miss Henderson, is a singer, songwriter and musician. Her stage name is Jodie Aysha. In 2004, when she was about 14 years old Miss Henderson composed the lyrics for a song called Heartbroken. There is a dispute about the melody to which I will return.
2. In 2005 she met with Tafazwa Tawonezvi. He is about the same age as Miss Henderson and they had been working on musical projects in Yorkshire since about 2003. At that time he was concentrating on styles of music known as Grime, Hip Hop and R&B. Mr Tawonezvi is known universally as T2. Mr Tawonezvi had a computer-based recording system set up in a bedroom in the flat where he was living at the time. The system was used to play some slow R&B beats. Miss Henderson sang Heartbroken into Mr Tawonezvi's system and a recording was made. There is a dispute about exactly what happened on that occasion and on what terms, but there is no doubt a recording of Miss Henderson's vocal performance was made.
3. In mid 2005 Mr Tawonezvi's musical interest focussed on a new sound genre now called "Bassline" but then known as "Niche", stemming from a nightclub of that name in Sheffield. He started making Bassline tracks using his own equipment and by early 2006 Mr Tawonezvi had people following his music in the whole of Yorkshire. His reputation at clubs in 2006 began to grow and by the end of 2006 he was becoming a successful DJ doing 3 to 5 gigs a week.
4. In January 2007 Mr Tawonezvi returned to the recording of Miss Henderson's vocal performance which he had retained. Using this recording he produced a new version of Heartbroken. The new version consists essentially of Miss Henderson's vocal performance mixed above a new "Bassline" bass-line created (or at least mixed) by Mr Tawonezvi. Mr Tawonezvi altered the pitch of Miss Henderson's voice electronically and also "chopped up" her vocals in certain ways. In addition the chorus of Heartbroken as it appears on the track more than once is the same segment of Miss Henderson's vocal, repeated.
5. Mr Tawonezvi sent a copy of the track to Sean Scott, another DJ, for him to put on his January mix CD. Mr Tawonezvi released the track as "T2 - Heartbroken".
6. There is a dispute about when exactly Miss Henderson discovered what Mr Tawonezvi had done. One way or another in early 2007 Miss Henderson knew that Mr Tawonezvi had produced a remix of Heartbroken. At that stage Mr Tawonezvi had started producing and selling "white label" vinyl copies of it. White label releases are on a small scale and are done on a private basis, not under the auspices of a record company. The Heartbroken track was proving to be very popular in the clubs in which Mr Tawonezvi played it.
7. In February 2007 Miss Henderson and Mr Tawonezvi were communicating on the MySpace social networking site about Heartbroken. There was an issue that the entire track was available for public download on Mr Tawonezvi's Myspace page but Miss Henderson explained to him how to prevent that. They were both trying to build their careers in the music industry. Amongst other things Mr Tawonezvi was using the track as part of his DJ set and Miss Henderson was performing "personal appearances" singing Heartbroken in clubs over a bass-line track provided by Mr Tawonezvi. The relationship between Mr Tawonezvi and Miss Henderson deteriorated rapidly in that period.
8. By summer 2007 Miss Henderson's elder sister Hayley was acting as her manager. They heard rumours that Mr Tawonezvi had signed Heartbroken to a record company called All Around the World Recordings Ltd, the defendant. All Around the World were and are a successful record company in the dance music scene. They are based in Blackburn. The company releases tracks individually and together with other recordings but also in compilations. The company's brand "Clubland" is a very successful brand of dance music compilation. The key individuals at All Around the World are Cris Nuttall and Matt Cadman.
9. In fact the position vis à vis All Around the World was as follows.
10. Phil Sagar was a consultant working in the music industry, looking for recordings and artists, particularly in the North of England. He became aware of Heartbroken in early 2007. By summer 2007 he thought all the indicators of success were in place. It was being played by a number of DJs at clubs and was heavily played on BBC Radio 1's 1Xtra station, which specialises in the latest urban music genres. Bassline was an emerging genre and Heartbroken was the biggest and most popular track in the genre. Mr Sagar met Mr Tawonezvi and had a brief discussion with him.
11. Mr Sagar then approached All Around the World in about June or July 2007. At the time they were introduced to the track, All Around the World were told that the artist (Mr Tawonezvi) had released Heartbroken and it was available on 12" vinyl but had not been signed to a record company. However by the time All Around the World actually approached Mr Tawonezvi, he had signed with another company called 2NV Records Ltd, the Third Party in this case. The individuals at 2NV were Chris Nathaniel and Paul Boadi. From then on 2NV acted as Mr Tawonezvi's manager.
12. There is a letter in existence from 2NV to Miss Henderson dated 30^th August 2007 but which appears in fact to have been sent on 30^th July. In the letter Paul Boadi says that he has made efforts to "finalise business matters" relating to Heartbroken and tried to arrange a meeting with Miss Henderson and her manager on 26^th July but they did not attend. He says that if he does not hear from Miss Henderson by return he "will have no option but to proceed accordingly".
13. On 13^th August 2007, although they had initially wished to contract directly with Mr Tawonezvi, All Around the World signed a contract with 2NV to release Heartbroken. The contract gives or purports to give All Around the World all the rights necessary to do this. The contract names the artist as Mr Tawonezvi. The advance for Heartbroken paid by All Around the World under this contract was £30,000.
14. On 21^st August 2NV offered Miss Henderson £1,500 for her vocal performance. She refused.
15. On 21^st 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 10^th 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. On 12^th 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". In any case Miss Henderson contends that All Around the World breached the Pozer contract because under the contract they were obliged to procure a bona fide commercial release of the record but she contends they did not do so. It was released but only as a low ranking track on part of a Clubland compilation album. There was an attempt to terminate the contract and the parties cannot agree about how the mechanics of those termination provisions work and what happened. This is not a major issue in the case but it falls to be decided.

The proceedings

25. Lawyers acting for Miss Henderson made a number of claims over the years and as a result All Around the World agreed to hold back all royalty payments to 2NV. In any event on 12^th January 2012 Miss Henderson issued a claim in the Patents County Court against All Around the World. The Particulars of Claim pleaded a claim for infringement of copyright and performer's right in Heartbroken by All Around the World. The claim for copyright infringement was misconceived and was not in the end pursued.
26. All Around the World's defence is that at all times they acted pursuant to the contract with 2NV and that they acquired the rights to do what they did as a result of that contract. They contend that Miss Henderson knew all about this; and that they released Heartbroken with Miss Henderson's acquiescence, approval, encouragement and support, relying on the dealings with Miss Henderson prior to 12^th November 2007 including her participation in the video, her permission to use her image on the single, her performances of Heartbroken in support of the release, her meetings with All Around the World to coordinate the promotion and her (and her manager Mr Wolfe's) active encouragement and cooperation in the release. All Around the World also contend Miss Henderson is estopped from pursuing her claims, relying on the same facts as referred to already.
27. In reply Miss Henderson pleads a case in the alternative. It boils down to the contention that if, which is denied, she is to be regarded as having given consent of some kind to the release, that consent was not unqualified and Miss Henderson is entitled to be accounted to in respect of the exploitation of the release. The case was argued as a form of quantum meruit or as a restitutionary claim.
28. Once proceedings were served, All Around the World issued a Part 20 claim against 2NV under the warranties in the contract between these companies. In that claim All Around the World contend that if, which they deny, they are liable for infringement, then they are entitled to damages for breach of contract from 2NV. 2NV did not file a defence or acknowledgement of service and on 28^th September 2012 judgment in default was entered against them, with the amount due to be decided at the same time as in this action. By CPR r20.11, 2NV were deemed to admit the claim of the part 20 claimant, All Around the World, and will be bound by this judgment insofar as it is relevant to the Part 20 claim.
29. Before me Miss Henderson was represented by Chris Pearson instructed by Fladgate LLP and All Around the World were represented by Gwilym Harbottle instructed by Anthony Jayes LLP.

The witnesses

30. In addition to giving evidence herself, the claimant also called as witnesses her sister and one time manager Hayley Henderson and her friend Natasha Alleyne. For the defendant I heard evidence from Mr Tawonezvi, from Cris Nuttall, Phil Sagar and Matt Cadman. Mr Cadman had not provided a witness statement in this case because until trial the defendant had not intended to call him. However at the outset there was a dispute about Miss Henderson's alternative case. I allowed that case to be part of the proceedings but in fairness to the defendant, I also permitted Mr Cadman to be called as a witness. In the end Mr Harbottle simply tendered him for cross-examination.
31. Understandably Miss Henderson feels very passionately about this dispute. Nevertheless as a witness she came across as a very composed young woman. Save for one point, I have essentially accepted her testimony. The one point relates to the circumstances in which her original vocal performance was recorded. I will return to that below.
32. Hayley Henderson was a defensive witness but I have no reason to doubt her testimony.
33. Natasha Alleyne's evidence relates to the recording of Miss Henderson's original vocal performance. She accompanied Jodie at the time. She was frank about the extent of her memory.
34. Mr Tawonezvi (T2) also feels strongly about this dispute, just as strongly as Miss Henderson. On certain elements of the debate about the original recording, I have preferred his testimony to that of Miss Henderson. However as I shall explain, in my judgment the key to much of the difficulty in this case is that when Heartbroken first started to enjoy success, in 2007, Mr Tawonezvi claimed far more of the credit for Heartbroken than he was entitled to. Although his evidence today has retreated from that position somewhat, he still maintains a claim to a larger share of the credit than he deserves.
35. Mr Nuttall has many years experience in the record industry. He was a vocal witness, anxious to explain All Around the World's point of view and to explain why they acted in the way they did. The importance of Mr Nuttall's evidence relates to the period in the summer of 2007. I will deal with those issues below.
36. Mr Sagar's evidence explained some of the background but his testimony was not important in relation to the areas in dispute.
37. Mr Cadman's evidence was extremely short. His evidence did not touch on the major issues in any depth.

The law

38. Performer's rights are governed by Part II Chapter I of the Copyright Designs and Patents Act 1988. A "performance" includes a musical performance (s180(2)(b)). A performer has economic rights and moral rights relating to their performance. The economic rights give the performer the right to require her consent to the exploitation of her performances (s180(1)(a)). The moral rights include a right to be identified (s205C of the 1988 Act).
39. A performer's consent is required to make a recording of her live performance (assuming other criteria are satisfied). This is s182. This right is one of a performer's so called "non-property" rights, no doubt because it is not really assignable or transmissible at all (only on death).
40. A performer also has other economic rights relating to a recording of her live performance. The relevant ones in this case are a reproduction right (s182A), a distribution right (s182B), a rental and lending right (s182C) and a right to make copies available to the public (s182CA). These are defined as a performer's property rights (s191A). I will set out s182A below. There is no reason to set out s182B, 182C, 182CA nor s205C.

182A Consent required for copying of recording

(1) A performer's rights are infringed by a person who, without his consent, makes a copy of a recording of the whole or any substantial part of a qualifying performance.

(1A) In subsection (1), making a copy of a recording includes making a copy which is transient or is incidental to some other use of the original recording.

(2) It is immaterial whether the copy is made directly or indirectly

(3) The right of a performer under this section to authorise or prohibit the making of such copies is referred to in this Chapter as "reproduction right".

41. The 1988 Act contains a provision about consent in s193. Subsections (1) and (3) are expressed to refer only to a person having a performer's non-property rights or to a person having recording rights. Oddly therefore, the provisions do not apply expressly to the person having the property rights. The consent may be given in relation to a specific performance, a specific description of performances, performances generally and may relate to past and future performances. Mr Harbottle submitted that the same must apply to a performer's property rights (referring to Arnold Performers' Rights 4^th Ed paragraphs 5.66 and 3.21). I agree.
42. There are no formalities required for consent to be effective. Although written consents are routinely obtained from performers in the music industry, there is nothing in the law which provides that the consent of the performer has to be in writing. Obtaining a written consent obviously makes good sense but it is not required in law. In principle consent could be express or implied. It may be that a performer consents to the undertaking of some acts restricted by performer's right but not others. These matters are all questions of fact.
43. Mr Pearson relied on the judgment of Sir John Vinelott in the Shirley Bassey case (Bassey v Icon Entertainment [1995] EMLR 596). In this case the learned judge gave summary judgment in the well known singer's favour in a claim for infringement of her performer's right relating to recordings of her performances singing songs derived from James Bond films. Amongst other things the defendant claimed that consent had been given. Sir John Vinelott rejected that defence and refused leave to defend. He held that the account of the relevant conversation was hopelessly vague and quite inadequate to found a willing consent to the exploitation of a record without any payment for her rights to prevent exploitation. There was also no evidence as to who it was that the defendant had allegedly spoken to who had given the consent. The judge said:

"It would be astounding, it seems to me, that anyone would have consciously given consent on her behalf without at least enquiring whether any payment was proposed and what the expected profit from exploitation was likely to be."

44. Mr Harbottle submitted that this judgment is concerned entirely with the facts and lays down no principle of law. I agree. Mr Pearsons' point though, was to emphasise the issue which troubled the judge, namely that someone supposedly giving their willing consent to exploitation would need somehow to be satisfied about finance. Thus in the absence of financial terms of some kind, the existence of conscious consent would be unlikely. Mr Pearson did not suggest this was a principle of law. Plainly it is not but it does amount to common sense.
45. A further point which Sir John Vinelott made earlier in his judgment may have some resonance in this case. He noted criticism of part of a judgment of Mervyn Davies J in Mad Hat Music v Pulse 8 [1993] EMLR 172 by the authors of Laddie, Prescott and Vitoria The Modern Law of Copyright in paragraph 26.9 of the then current edition. The authors contended that a performer who gives their consent to the making of a studio recording impliedly consents to the making of records from it for a subsequent issue to the public. As Sir John Vinelott held, in the absence of any such authority whether express or implied, the making of a record clearly infringes a performer's rights. He continued:

"Indeed it would largely defeat the rights conferred by the Act on a performer if, having once consented to the making of a recording, albeit on terms that records were not to be released unless the performer was satisfied with the recording, the recording could be exploited by the making of records from it and of the sale of the records by a third party into whose hands the recording had come and who could not be restrained by any contractual right from the exploitation of it."

46. Mr Harbottle cited Barrett v Universal – Island Records Ltd [2006] EWHC 1009 (Ch) (the Bob Marley case). In that case Lewison J considered the aspect of Bassey v Icon I have referred to above and held that the facts may be such that it is proper to infer from consent to the recording of a performance a consent to the subsequent issue of copies of the recording to the public. As Lewison J pointed out that inference was not possible in Bassey on the facts. In relation to the case before him Lewison J held that a separate consent would not be required in relation to the issue to the public of precisely the same performance merely because the method of fixing the performance had improved technologically.
47. What I take from these cases overall is that the existence of a consent and the scope of any consent given will be highly fact-sensitive questions. I do not think Sir John Vinelott or Lewison J (as he then was) were seeking to suggest anything different.
48. Mr Harbottle also submitted that the principles in Redwood v Chappell [1982] RPC 109 relating to inferred or implied consent, which were formulated in the context of copyright, must apply by analogy to performer's rights. I agree. The question is whether viewing the facts objectively the words and conduct of the rights owner as made known to the user indicated that the rights owner consented to what the user was doing (per Robert Goff J p128 ln37-41).
49. In support of his argument about quantum meruit and restitution, Mr Pearson cited Fisher v Brooker [2009] UKHL 41 and in particular an extract from the speech of Lord Neuberger which referred to quantum meruit. He also cited Australian cases: Planche v Coburn (1831) 131 ER 305 and Brenner v First Artists Managemnt Pty Ltd [1993] 2VR 221 and an extract from Goff and Jones on The Law of Unjust Enrichment 8^th Ed. For reasons which appear below I have not found it necessary to explore this area of the law in this case.

Assessment

2005

50. The first question relates to the circumstances in which Miss Henderson's vocal performance was recorded on Mr Tawonezvi's equipment in 2005. The evidence was flatly contradictory on the point.
51. Miss Henderson's evidence is that she and her friend Natasha visited Mr Tawonezvi at the flat because she was looking for some R&B beats. She brought her notebook with the lyrics written in it. She says he had a computer recording system and he played some beats for Miss Henderson. He invited her to sing over the beats. Miss Henderson was young and self-conscious and did not want to sing in front of Mr Tawonezvi. Nor did she want him to record her. She says he agreed not to record her and to simply set the machine running to play the beats and leave the room, allowing her to sing without him being present. Only Natasha Alleyne would be present. When she sang, the beats were playing through speakers in the room. She says that there was never any suggestion that she was performing the role of a session singer or that she and Mr Tawonezvi were in any form of collaboration. She said that Miss Alleyne was suspicious and opened the door, whereupon Mr Tawonezvi fell into the room having been listening at the door. Miss Alleyne called Mr Tawonezvi a pervert. She said that Mr Tawonezvi gave her a CD with the beats on it to take away. Miss Henderson says that she discovered Mr Tawonezvi had made a recording in a telephone conversation the following day. She said she was very cross and that he agreed to erase it. In cross-examination Miss Henderson maintained this account unshaken.
52. Miss Alleyne's evidence in her witness statement supported Miss Henderson's account. In cross-examination Miss Alleyne maintained her position that Miss Henderson did not want to and did not in fact sing in front of Mr Tawonezvi and maintained the evidence about Mr Tawonezvi listening at the door. However Miss Alleyne clearly did not have a strong memory of Miss Henderson actually telling Mr Tawonezvi in the room that he could not record her singing. To her credit she did not pretend that she did have a clear memory on this point. Her memory was that Miss Henderson had told her at some point that she had not consented to Mr Tawonezvi making the recording.
53. Mr Tawonezvi's account of these events is entirely different. He says he asked Miss Henderson to come over to the flat to do some tracks. She came with Miss Alleyne and he played some backing tracks he had made. She picked a slow R&B track and recorded some lyrics she had written, which ended up as the first version and recording of Heartbroken. Mr Tawonezvi managed all the recording equipment and produced the recording. Miss Henderson sang into a microphone wearing headphones. He says there is no doubt Miss Henderson consented to her performances being recorded. That was why she came to the house.
54. Mr Tawonezvi says he spoke to Miss Henderson shortly afterwards and she was not happy with the way she came across on the track and wanted to come back and re-record her vocals. She came back about a week later with Miss Alleyne and did so. Mr Tawonezvi's friend Daniel was present on this occasion. On this second occasion Miss Henderson only managed to sing two verses and the chorus (of Heartbroken) because she had to leave to help her mother. After that Mr Tawonezvi and Miss Henderson spoke a few times about her coming back to do ad libs, harmonies and things of that nature but this never happened. He says that the claim that he recorded her voice without her consent is totally false. Mr Tawonezvi maintained his version of these events in cross-examination.
55. It is impossible to reconcile the accounts of these witnesses. I start by reminding myself that this part of the dispute relates to events which took place 7 years ago. The computer files from that period are not available. Mr Tawonezvi says that his computer from that time has crashed. There is no reason not to accept that. No evidence from Mr Tawonezvi's friend Daniel was provided but it is not the case that Daniel was unavailable.
56. I think all three of the relevant witnesses, Miss Henderson, Miss Alleyne and Mr Tawonezvi were seeking to tell the truth about what happened at that time as they saw it and as they recollected it. But the episode in question has been the subject of hot dispute between Miss Henderson and Mr Tawonezvi since 2007. Each cares passionately about their position. Neither is an objective witness. Miss Alleyne is more objective than Miss Henderson but she too is clearly supporting her friend.
57. A particular element of Mr Tawonezvi's stance in this case which came through during his cross-examination was that he clearly thought Miss Henderson had not been acting in her own best interests. This concerned the events in 2007, when the Heartbroken track Mr Tawonezvi had remixed in January had started to become successful. My clear impression of Mr Tawonezvi was that he thought he knew better than Miss Henderson how things should be done and that Miss Henderson was making unnecessary trouble in 2007. At that stage – in 2007 – Mr Tawonezvi was in a more powerful position than Miss Henderson.
58. It is notable that today Mr Tawonezvi accepts that the lyrics were written by Miss Henderson. Miss Henderson said that in 2007 Mr Tawonezvi was claiming it was his own material. I accept her evidence on that. Miss Henderson has a recording of a telephone call sometime in the first half of 2007 in which Mr Tawonezvi admits the lyrics were hers. The fact that she was pressing him for confirmation on this point at the time supports her evidence that she was being told that he was at that time claiming Heartbroken for his own. He released it as "T2 – Heartbroken".
59. However in relation to the events in 2005, there is a crucial element in Miss Henderson's account which does not fit. If her voice was recorded with the R&B beats playing over speakers then the recording will have had the beats on it as well as her voice. In order to record her voice alone, the way that would be done would normally be for the backing track to be played to the singer through headphones so that the microphone only picks up the vocal. Mr Tawonezvi maintained that that is what happened in this case. Mr Pearson submitted that even if the vocal had been recorded with the beats in the background, the beats could always be stripped out later by a computer. That is what Miss Henderson contended must have happened. When it was put to Mr Tawonezvi in cross-examination his response was that while "MI5" might be able to do that, he could not and did not.
60. One of the other, generally peripheral disputes between Mr Tawonezvi and Miss Henderson in the evidence related to later events concerning "acapella" recordings, that is to say recordings of a vocal alone without a backing track.
61. While one could imagine calling signal processing expert evidence to resolve the question, it would clearly have been disproportionate to do so. I must do my best with the evidence I have. I am quite sure that it is possible technically to attempt to strip out background noise or music, particularly if you already have a separate recording of the background music itself but I doubt it is feasible to do this particularly well. The track as released sounds fresh and crisp to my ear. In any event I preferred Mr Tawonezvi's account on this issue. On this point I found Mr Tawonezvi's evidence to be more persuasive and his account to make more sense. In my judgment Miss Henderson's vocal in the released track of Heartbroken was recorded as a voice alone (acapella). She must have been wearing headphones to hear the R&B beats in the background in 2005. I do not accept Miss Henderson's evidence that the recording of her vocal as it appears in the released track was made when she was singing with speakers playing R&B beats in the background. The R&B beats were very different from the bass line in the released track. The recording was made when Miss Henderson must have been listening to the beats on headphones. Miss Henderson's firm recollection to the contrary is genuinely held but is erroneous. I am fairly sure, though it does not matter, that Miss Henderson's and Miss Alleyne's account of an episode with Mr Tawonezvi listening at the door did indeed happen sometime but it does not mean that it happened on the relevant occasion and it does not mean the recording was without her consent. Whether Mr Tawonezvi was actually present in the room when Miss Henderson sang I do not know but it does not matter.
62. However this does not mean I accept everything Mr Tawonezvi said about the events in 2005. It is notable that Mr Tawonezvi's account of the events in 2005 takes care not to accept that Miss Henderson composed the melody or top line. In this respect Mr Tawonezvi has not been entirely straightforward. His witness statement accepts that Miss Henderson brought the lyrics with her but leaves open the issue of the melody. That is why he referred to recording "some lyrics she had written" and states that they were recorded over backing tracks he had made. This was a careful attempt on his part to maintain the ability to argue that the melody of Heartbroken derived at least in part from Mr Tawonezvi.
63. Mr Tawonezvi was pressed about this in cross-examination. At points he sought to maintain that he contributed to the melody but it became clear that what he was relying on was the effect of the remixing, which undoubtedly he did carry out, in 2007. It is quite obvious that the dictaphone recording of Miss Henderson singing Heartbroken, has the same melody as appears on the track. Mr Tawonezvi said he had never heard the dictaphone recording before. I have no reason to doubt that. However I accept Miss Henderson's evidence that it was recorded before she ever went to Mr Tawonezvi's bedroom in the flat and I reject the suggestion it was made up to support her case. The dictaphone records the sound of a young girl singing a song quite hesitantly. It plainly came before the vocal performance which appears on the released Heartbroken track. No amount of remixing, pitch correction and other signal processing by Mr Tawonezvi could account for the obvious difference.
64. The released track has a number of elements. The lyrics and the melody of Heartbroken were composed by Miss Henderson but the prominent bass line and beats and the chopping up of her vocal were Mr Tawonezvi's work. I am sure all these latter elements contributed to its success but I am also sure that the basic melody of Heartbroken was Miss Henderson's. In no sense could Miss Henderson be characterised as a session musician in relation to the recording of her vocal. She was in 2005 a singer songwriter singing a musical work of her own composition.
65. The question I have to decide in relation to 2005 is whether Miss Henderson consented to the recording being made and if so, on what terms. Given the circumstances I reject Miss Henderson's case that she did not consent to the recording being made. The reason for singing in this way was in order to allow an acapella vocal to be recorded. In my judgment she must have known, when giving the performance, that it was being recorded by Mr Tawonezvi's equipment. She had already worked on projects producing recorded music before. She consented to the recording being made. However that is a very long way from a finding that this consent was sufficient to permit Mr Tawonezvi to remix or release that recording without Miss Henderson's specific consent at a later date. I have already said that in no sense could Miss Henderson be called a session musician. Moreover Mr Tawonezvi's flat was not a professional recording studio. I doubt the matter was discussed between Miss Henderson and Mr Tawonezvi in any detail but I am sure Mr Tawonezvi cannot have thought that Miss Henderson had given her express consent to any release of the recording or any remixing. Indeed Mr Tawonezvi himself only says that Miss Henderson consented to being recorded. He does not say that she purported to give any consent to any future exploitation of the recording. It would be astonishing if she had. I also reject any suggestion that the consent which was given could be said to carry with it by necessary implication, a consent to do any further act restricted by performer's right in relation to the recording of her performance.
66. I conclude that in 2005 Mr Tawonezvi made a recording of Miss Henderson's vocal performance of a song, Heartbroken, of which she, Miss Henderson, was the composer. The recording was made with her consent but the song itself as recorded was Miss Henderson's work. The copyright in the sound recording itself will probably have belonged to Mr Tawonezvi but the performer's right, and at that stage the copyright in the musical work, belonged to Miss Henderson.

Early 2007

67. The next significant event took place in early 2007 when Mr Tawonezvi remixed the recording of Miss Henderson singing Heartbroken in order to produce the track which was released. It has a prominent "Bassline" feel and that is down to Mr Tawonezvi's own creativity added onto Miss Henderson's original Heartbroken work. Mr Tawonezvi did not suggest that Miss Henderson had given her prior consent to this remixing and I find she did not. Mr Tawonezvi went ahead and did this himself. At that time he had been experimenting with remixing acapellas of famous performers' performances which can be downloaded illegally from the internet. Mr Pearson suggested this was proof that Mr Tawonezvi was a serial infringer of other people's intellectual property rights and that this had a bearing on this case. I do not think that is fair. Undoubtedly Mr Tawonezvi's experimenting did indeed infringe intellectual property rights and was unlawful but he was doing no more than is done by numerous young DJs in the club music scene all over the world. His actions cannot be condoned but the point does not advance the claimant's case in this action.
68. Mr Tawonezvi began releasing his remixed version of Heartbroken in early 2007 and Miss Henderson became aware of it. As I have said already at that stage Mr Tawonezvi was in a more powerful position than Miss Henderson and, as I have said already, he claimed more of the credit for Heartbroken than he deserved. But it is not right to say he was entitled to no credit at all. He took Heartbroken and made it a leading track in the emerging "Bassline" genre.
69. Miss Henderson's account of how she came to hear about Mr Tawonezvi's release was that friends of hers had heard Heartbroken as a mobile phone ringtone entitled "T2 – Heartbroken". She was upset and discovered that Mr Tawonezvi had also released white label vinyl copies of the track. She said it was everywhere and credited to Mr Tawonezvi. Mr Tawonezvi's evidence is again to the contrary. He says he called her as soon as he had mixed the track and that she was very excited. He says he gave her a copy of the track a few days later. There are more disputes of detail about the early part of 2007 but it is not necessary to delve into the detail. Miss Henderson's account of this period is supported by Miss Alleyne and Hayley Henderson. They corroborate each other. I prefer their accounts to that of Mr Tawonezvi in relation to this period. Miss Henderson has never been paid by Mr Tawonezvi any share of the receipts for the white label release.
70. Nothing Miss Henderson did in this period could be fairly characterised as consent or acquiescence to the creation or release of the track. Mr Tawonezvi released it without her consent and nothing Miss Henderson did subsequently could be said to ratify or authorise those acts. She was presented with a fait accompli by Mr Tawonezvi's actions. All the discussions and actions, including the involvement of her sister as her manager, her personal appearances singing Heartbroken in clubs using a bass-line provided by Mr Tawonezvi and the discussions on Myspace and so on, have to be seen in that light.

mid 2007

71. The next phase of the dispute relates to the beginning of the dealings with 2NV and All Around the World. The position is simple. Mr Tawonezvi did not have any authority to bind Miss Henderson in his dealings with 2NV. When he contracted with 2NV, that company could not acquire anything he did not have. He did not have Miss Henderson's consent to release the track. Whether 2NV realised that at the outset I do not know but they will have been aware at all material times that Miss Henderson was the performer singing Heartbroken on the track and they knew there was no written consent from her for that performance. The letter from 2NV to Miss Henderson which was probably on 30^th July albeit it is expressly dated 30^th August, shows that by then they knew that Miss Henderson objected to what was going on. The letter refers to efforts to finalise "business matters relating to the above named record". The only matters this can have been were Miss Henderson's consent as a performer, since the letter does not acknowledge that Miss Henderson has any other involvement in Heartbroken. I infer that 2NV were well aware at that stage that Miss Henderson had not given her consent under her performer's rights. They had no consent to copy the recording and no consent to distribute it. The offer from 2NV of £1,500 to Miss Henderson on 21^st August was derisory.

All Around the World

72. The contract between 2NV and All Around the World in relation to Heartbroken names "the artist" as T2 and makes no mention of Miss Henderson. That is a travesty. No doubt it is a reflection of what Mr Tawonezvi had told 2NV and what they relayed to All Around the World. Initially therefore I do not doubt that from All Around the World's perspective the artist was indeed Mr Tawonezvi. However from the direct discussions with Miss Henderson which took place, it is quite clear that Mr Nuttall knew very well during the summer of 2007 that Miss Henderson's involvement with Heartbroken was much more significant than was being represented by 2NV (and presumably Mr Tawonezvi). Mr Nuttall accepts that he spoke to Miss Henderson and Hayley Henderson many times in the weeks after they signed the contract with 2NV.
73. Mr Nuttall explained All Around the World's position. For the purposes of this case, there is no relevant difference between Mr Nuttall and All Around the World. Mr Nuttall said that in the music industry, companies in his position had to and did rely on the warranties provided in this case by 2NV. It was 2NV's responsibility to make sure the relevant consents were obtained.
74. I accept the general tenor of Mr Nuttall's evidence, and Mr Harbottle's submission, that in a creative industry like the music business, if one had to chase down every consent for every last performer, (e.g. the third trombone player) before releasing a record, nothing would ever get done. I'm sure this is true as a matter of practical reality but that does not give record companies any special entitlement to override anyone's legal rights and in any event it is not an accurate characterisation of the position of Miss Henderson in relation to Heartbroken.
75. Having listened to Mr Nuttall give evidence, he comes across as someone highly skilled at what I presume is the core of his business, which is to work with creative people in the music industry to produce successful records, mainly by keeping the creative people as motivated and happy as they can be. I am sure that is what he was seeking to do in this case.
76. All Around the World's position is that Miss Henderson clearly consented to and positively encouraged the release of Heartbroken. I reject that for the following reasons. First, there was no express consent at any stage. The only consent which could exist would be implied and inferred consent from the conduct and circumstances. On this the position is as follows.
77. Mr Nuttall knew very well that Miss Henderson was very unhappy. He knew that she felt she was not being given the credit she deserved. The episode about the cover of the single bears this out. Miss Henderson was in a very weak position, as Mr Nuttall will have been well aware.
78. The fact that she was prepared to accept a cover for the single which had both her and Mr Tawonezvi's image on it, with the artist's credit as "T2 featuring Jodie Aysha" does not mean she had given her performer's consent to the release. All Around the World knew that Miss Henderson did not regard this credit as a fair characterisation of the position and also knew, or ought to have known, that someone in her position had no realistic alternative but to accept a lesser credit than she was entitled to.
79. The same goes for all the various other acts relied on by All Around the World. They rely on her, clearly unhappy, participation in the promotional video organised by All Around the World. She plays a minor role in the video which is not consistent with the reality of her position. The fact that Miss Henderson was making personal appearances which did indeed promote the track is all very well but given her position and the manner in which 2NV, All Around the World and the various other people involved were dealing with her, she had no realistic alternative. The same applies to the meetings and the activities of her temporary manager Mr Wolfe. I will return to Mr Wolfe below.
80. The key reason why none of this could have been properly regarded by an objective person in All Around the World's position as an implied consent or give them grounds to infer the existence of consent on her part, is that Mr Nuttall knew that Miss Henderson had not signed with 2NV and so he knew or ought to have known that no matter how much royalty All Around the World paid to 2NV, Miss Henderson had no contractual right to obtain any of it from 2NV.
81. In no sense did Miss Henderson encourage All Around the World to think she had no claim and in no sense did they rely on any such encouragement. The position is the reverse. All Around the World knew, or at least an objective person in their position would have known, that until a contract was signed between Miss Henderson and someone, her consent cannot have been and had not been given. If the release went ahead without her consent then Miss Henderson would have had a claim. Mr Harbottle submitted that this is not the correct analysis because in truth what was happening was that Miss Henderson was consenting to the release of the track but just wanted some money. I do not accept that is the right way of looking at it.
82. Of course it was in All Around the World's interests for Miss Henderson to sign with 2NV. That way All Around the World would not have to pay any more royalties and the problem of sharing the royalty paid by All Around the World would be a problem sorted out at 2NV as between 2NV, Mr Tawonezvi and Miss Henderson. But it did not happen.
83. Obviously Miss Henderson wanted the track to be released successfully but only subject to proper terms. The only thing a performer has to bargain with in order to ensure they are properly paid is their consent to the release. The true position is that All Around the World went ahead at risk. Businesses often have to take risks and the music business is no different. In the summer of 2007 All Around the World knew that Miss Henderson had not in fact signed up with 2NV or for that matter with All Around the World themselves. An objective person in their position would know that the consideration for such a contract would be Miss Henderson's performer's consent to the release of the track in return for royalties. There was no such consent at that stage.

Autumn 2007

84. At some point in autumn 2007 Miss Henderson was represented by Steve Wolfe as temporary manager. Mr Nuttall was well aware of this and viewed it as a positive development. I am sure he was right to do so. Amongst other things Steve Wolfe started plugging the track in various ways, e.g. by talking to Radio 1 and talking about appearances on the BBC's Children in Need programme. He was also trying to negotiate a deal between 2NV and Miss Henderson. There is an email between Steve Wolfe and Chris Nathaniel at 2NV dated 14^th November 2007 which was forwarded by Steve Wolfe to Cris Nuttall on the same day. The email shows that negotiations between Miss Henderson and 2NV were advanced. In fact Heartbroken had been released on 12^th November but the negotiations must have started before that and I infer that Mr Nuttall knew about them. The terms included a £15,000 advance to be paid to Miss Henderson directly by All Around the World. As to royalty the document reads "we would like to be credited with 11.5% an equal 50% split of the royalty you are receiving and again accounted to directly". No agreement was reached. Mr Wolfe was later fired, I think in early 2008.
85. Miss Henderson says she did not know Mr Wolfe had been negotiating with 2NV. Although perhaps surprising, I accept her evidence. She says she always understood that All Around the World would look after her. She had a number of telephone conversations with Chris Nuttall in the period. Miss Henderson refers in particular to one she recorded. It must have taken place between about 30^th October and before the release on 12^th November. The recording itself was played in court and the transcript was in evidence. The recording provides strong support for Miss Henderson's case. In it a sophisticated music industry professional, Mr Nuttall, is reassuring a young artist that everything will be all right, that she will be paid the money she is entitled to and that he (i.e. All Around the World) is ensuring that this will happen.
86. Mr Nuttall said that all he was doing in this call was reflecting the fact that at that time he genuinely believed Miss Henderson was going to sign a deal with 2NV and if that had happened, she would indeed get paid. Mr Nuttall's belief that that was what was going to happen was based on his contact with Steve Wolfe. It may very well be that Mr Nuttall felt he could give Miss Henderson the reassurance he was offering because he genuinely thought that that was what was going to happen. However that is not what he was telling Miss Henderson. He did not say that the money he was referring to which she was going to make from the record would only come if she signed with 2NV.
87. Mr Nuttall did at one point use the expression "I promise you" but in fairness to Mr Nuttall that was not and could have been construed as a formal promise. He was saying what was going to happen and using that expression to confirm that he was sure he was right. The phrase was part of the overall thrust of the conversation as one of reassurance. Miss Henderson needed to be reassured and kept happy because Mr Nuttall knew she was extremely unhappy and he knew why. At one point he said "I was laughing a bit earlier because, you know, everyone's talking about Jodie now more than T2".
88. The conversation was not cynical from Mr Nuttall's point of view. I expect he genuinely thought he was safe to give Miss Henderson these reassurances because he thought she would sign up with 2NV. No doubt he thought he was acting in Miss Henderson's best interests but fundamentally Mr Nuttall thought All Around the World had a hit record on their hands and he wanted to release it as soon as practicable in order to maximise its chances of success.
89. Mr Harbottle also suggested that All Around the World thought Miss Henderson had a form of implied contract with 2NV to be paid a reasonable sum of money. It is true that in Mr Nuttall's evidence he always sought to characterise the problem as an "outstanding issue between T2, 2NV Records and the claimant regarding the apportionment of royalties" (e.g. paragraph 20 of his witness statement). However while that characterisation may well be a fair description of how things appeared to Mr Nuttall when the contract was first signed with 2NV in mid August, soon after that and well before Heartbroken was released he understood, and an objective person in his position would have understood, that unless Miss Henderson actually signed with 2NV, which had not happened, they had obtained no consent from her which could be passed on to All Around the World and she had no contractual right to royalties from anyone. The fact that Mr Nuttall thought Mr Wolfe was trying to reach agreement with 2NV is true but it is no basis for a belief in the existence of some sort of implied contract. It is the reverse. I reject the implied contract argument.
90. Mr Nuttall also said that he did not get involved and did not want to take sides in the problem as he says he saw it between Miss Henderson, 2NV and Mr Tawonezvi. That is not correct. Mr Nuttall was intimately involved and, at least from Miss Henderson's perspective, he clearly took sides. He was reassuring Miss Henderson that he was taking her side. Mr Nuttall also said that he sought to encourage Miss Henderson to come to terms with T2 and 2NV and concentrate on the future. I do not accept that in its entirety. He did seek to encourage Miss Henderson to look to the future and he probably did at one stage encourage her to come to terms with 2NV but as the release date approached and as I have said already, Mr Nuttall did not say to Miss Henderson that the money he was telling her she would receive would only come if she signed with 2NV.
91. Miss Henderson's view today is that all 2NV and All Around the World were doing was stringing her along. From her point of view, I think Miss Henderson is right.
92. In all this Mr Nuttall and All Around the World were taking a calculated business risk. The only consent they had in place derived from 2NV. No doubt All Around the World went ahead on the practical basis that these sorts of problems commonly arise and they honestly expected things to be sorted out subsequently. However they were not. All Around the World knew or ought to have known that if Miss Henderson did not sign with 2NV, then All Around the World did not have her consent to go ahead and release the record.
93. In my judgment the release of Heartbroken by All Around the World, by copying the recording of her performance and issuing to the public copies of the recording was an infringement of Miss Henderson's performer's rights.
94. There is no need to consider the alternative case based on quantum meruit or restitution.

Events after launch on 12^th November 2007

95. Mr Nuttall referred to discussions which went on after the release date. He says they started in earnest in December 2007 and various offers were made. From his perspective at this stage Miss Henderson was represented by an experienced manager (Mr Wolfe) and experienced media solicitors (Clintons). He says there was no mention of any claim against All Around the World and no allegation that the claimant had not given her consent to the manufacture and release of Heartbroken. He maintains his view that he understood the dispute was one between T2, 2NV and Miss Henderson. None of this advances the defendant's case. By this time Heartbroken had already been released. All Around the World had no basis to think that the ongoing sales were covered by a consent from Miss Henderson.
96. On 25^th April 2008, Clintons, acting for Miss Henderson, wrote to 2NV's solicitors. The letter asserts that 2NV and Mr Tawonezvi have infringed Miss Henderson's performer's rights. The letter claims a substantial share of the royalty to be paid by All Around the World to 2NV and states that Mr Tawonezvi could not fairly claim more than 3% royalty on the track. The letter refers to Miss Henderson's agreement to perform in the promotional video and states that in doing so she did not agree to waive relinquish or otherwise affect any of her rights against 2NV and Mr Tawonezvi. The letter refers to Miss Henderson's involvement in the video and states it was in circumstances in which 2NV and Mr Tawonezvi had already confirmed to and assured Miss Henderson that she would receive fair and proper remuneration from exploitation of the track but in the event 2NV, Mr Tawonezvi and All Around the World have failed and/or refused to reach agreement with Miss Henderson or even pay unilaterally a fair and reasonable remuneration.
97. No substantive response was received and on 30^th July 2008 Clintons wrote to All Around the World. The letter stated that in the light of the absence of a response from 2NV and Mr Tawonezvi and the substantial exploitation of the track by All Around the World, it would be necessary to advance a claim against them also. The response from the defendant's solicitors was to express regret that there appeared to be a dispute between Miss Henderson and 2NV but that Miss Henderson had fully co-operated with the release.
98. Mr Harbottle submitted that the stance taken in correspondence, particularly in the letter to 2NV's solicitors, was at odds with the case now advanced and that it showed that all along, All Around the World were entitled to the view that this problem was a problem between 2NV and Miss Henderson and that her remedy was against 2NV and not All Around the World.
99. I do not accept that submission. Nothing in the correspondence undermines the claimant's position in this case. Assuming 2NV (and Mr Tawonezvi) were themselves also reassuring Miss Henderson that she would receive fair and proper remuneration from exploitation of the track in the period up to the release, no agreement was ever reached and Mr Nuttall knew that. The later correspondence does not undermine the claimant's case either.

Estoppel

100. Mr Harbottle relied on an estoppel in his clients favour, even if no consent had been given. The alleged estoppel was pleaded based on the same facts as All Around the World's general defence and in this case the estoppel could not succeed if that defence failed. In any case I reject the (implicit) suggestion that Miss Henderson represented to All Around the World that she would not rely on her strict legal rights. She made no such representation either by words or conduct.

Pozer

101. Pozer is another song Miss Henderson wrote and performed. Whether All Around the World's motive for signing the contract with Miss Henderson for Pozer was just to placate her does not matter. I rather think All Around the World genuinely regarded Miss Henderson as a talented artist but that is not relevant.
102. The contract was made on or around 16^th April 2009. The contract is structured with an initial period and a series of option periods. The artist (Miss Henderson) is obliged to deliver a single in each period. The single for the initial period was Pozer. A £12,000 advance on royalties was paid for the first single. A further sum would be paid if the single reached the top 5 in the main singles chart.
103. Clause 6 of the agreement is as follows:

6. RELEASE COMMITMENT

(a) We agree to procure the bona fide commercial release (which if limited to digital formats shall mean making the recording available on such digital retail/streaming sites from time to time used by AATW (including but not limited to i-Tunes) and such sites customarily supplied by Universal Music Operations from time to time) of the Masters constituting the said Minimum Product Commitment in the United Kingdom within one hundred and eighty (180) days (one hundred and twenty (120) days in the case of any Single) following delivery of the same. Any such release must be supported by a bona fide promotion and marketing in order to qualify as a release under this clause.

(b) We agree to use our reasonable endeavours to procure the release (as described above) in the Major Markets of the Masters constituting the said Minimum Product Commitment within ninety (90) days following release of the same in the United Kingdom.

(c) In the event that we have not released the relevant Masters in accordance with the above provisions of sub-clause (a) above you shall be entitled to give us written notice requiring us so to do and in the event that we have no released the said Masters within ninety (90) days following our receipt of written notice from you, you shall (provided that we shall not have commenced making Masters been paid an advance in respect of any subsequent Period) be entitled to terminate the Term of this agreement forthwith by notice in writing. Further in the event of such failure to release the Masters and provided that you shall secure a release for us of any of our obligations to make payment of monies to producers and/or artists and/or any other third parties you shall also be entitled to purchase from us within three (3) months of the date of termination the rights in the said Masters for such countries in which release has not been effected upon reimbursement to us of any and all Recording Costs which we have paid in respect of such unreleased Masters and we shall re-assign to you all relevant rights (including the copyright) immediately on receipt of such monies. Your entitlement to purchase the rights in the Masters shall be your sole remedy.

(d) In the event that we have not released the relevant Masters (in accordance with the above provisions of sub-clause (b) above) you shall be entitled to give us written notice requiring us so to do and in the event that we have not released the said Masters within ninety (90) days following our receipt of written notice from you your sole remedy shall be to require us at any time thereafter to license such Masters to any third party of your choice provided that the terms of such licence are reasonably satisfactory to us and provide for sufficient royalties to pay to you your royalty hereunder and any third party royalty of not less than four per cent (4%) remaining for us.

104. Miss Henderson delivered a recording of her performance of Pozer to All Around the World and a promotional video was shot and edited. Miss Henderson says that various release dates for Pozer as a lead single came and went but the lead single was not released. She says no promotional campaign ever happened. Eventually All Around the World put a remix of Pozer by the Bassmonkeys on a three CD set of the compilation Clubland 16. Miss Henderson says the track was in a poor position at the end of the second CD. Miss Henderson says she was told by Phil Ellis a consultant who was helping her at the time, that Mr Nuttall had said that the song was featured on the compilation album for promotional use only and to give the lead single a boost. She says it was never suggested that this was an official commercial release of Pozer. There is an unresolved dispute about whether the remix of Pozer which appeared on Clubland 16 can be purchased as a download on the iTunes system as an individual track. All Around the World say it can and on Miss Henderson's behalf Mr Pearson said it cannot.
105. Mr Nuttall explained that sadly they had received negative feedback about Pozer from DJs and radio stations and so tried to generate interest by releasing it on the Clubland compilation. These albums sell several hundred thousand copies and are advertised on television. Clubland 16 sold over 260,000 copies in the UK.
106. Mr Harbottle submitted on behalf of All Around the World that the release of Pozer in this way satisfied clause 6(a). I do not agree, indeed I am not convinced All Around the World really think that either. Clearly the record company cannot guarantee the recording will be a hit but the contract obliged All Around the World to procure a bona fide commercial release of the Master, i.e. the recording of Pozer. To place it at the end of the second CD on a three CD compilation is not a bona fide commercial release of that Master and the argument is no better even if (which is disputed) Pozer is available on iTunes as a track as a result of being on Clubland 16.
107. Accordingly Miss Henderson was entitled to give notice under clause 6(c). That is what she did on 21^st December 2010. The bona fide commercial release still did not happen and so on 23^rd March 2011 Miss Henderson purported to give written notice terminating the agreement under the clause. To be precise the effect of such a notice is to terminate the Term of the agreement. The Term is defined in clause 1 as the initial period and optional further periods. The relevant period is deemed to continue unless an option is exercised (1(f)).
108. The termination gives Miss Henderson the right under clause 6(c) to purchase the Masters and take a reassignment of the copyright. This is subject to reimbursement of "Recording Costs".
109. The position All Around the World took in the letter from Anthony Jayes on 14^th January 2011 was that the contract had already terminated in July 2010 and that since then discussions about what to do with the reversion of the recordings had been ongoing but had not been resolved. There was no evidence before me that the contract had terminated in that way and Mr Harbottle did not press the point. The letter also suggested that Pozer had been commercially released digitally. This must have been a reference to the (disputed) ability to download the Pozer remix as part of Clubland 16 on iTunes.
110. In reply Fladgate asked for the sales information about Pozer. No information was provided and by the 23^rd March 2011 letter from Fladgate, Miss Henderson purported to terminate in accordance with clause 6(c). A discussion ensued in correspondence with Anthony Jayes stating that termination did not entitle Miss Henderson to the return of all relevant rights ( I presume because they had to be purchased) and Fladgate replying (10^th October 2011) that All Around the World had not paid any recording costs and so Miss Henderson was not obliged to make any payment.
111. So the matter rested until shortly before trial. At that stage All Around the World produced royalty summaries for Pozer which show recording costs against the small royalty income from Pozer on Clubland 16. I am told the sum properly attributable to recording costs is about £10,000. Before me Miss Henderson is apparently willing to pay the sum required. However Mr Harbottle's position was that the 3 month period within which Miss Henderson could have purchased the rights in the Masters had now expired, that time was of the essence in relation to such a period and so Miss Henderson had lost her right to purchase under the clause. Mr Pearson's submission is that Miss Henderson's ability to purchase within the 3 month period was frustrated because the royalty summaries only emerged recently.
112. The real problem is that while All Around the World do not want Pozer, since it did appear on the Clubland 16 album they wish to ensure that this does not cause difficulties in future. They believe there will be no further royalties generated as a result of this release of Pozer.
113. The effort required to resolve this element of the case is not worth the reward. Moreover I should observe that most of the argument about Pozer is not pleaded properly or at all. In my judgment, given that All Around the World's solicitors did not tell Miss Henderson's solicitors what the recording costs were until well after the three month period and after Miss Henderson's solicitors had made it clear they thought there were none, it would be absurd for All Around the World now to be able to rely on the non-payment within the three month period. I understand that Miss Henderson remains ready willing and able to pay the recording costs All Around the World contend are due. In my judgment she is entitled to purchase the rights by paying the sums claimed within a reasonable period, which seems to me to be no more than two months from this judgment (the royalty summaries having been provided in January 2013). She is not entitled to the rights without paying for them.
114. Assuming Miss Henderson purchases the rights, if All Around the World did earn any further royalties from the prior release, they would not be obliged to account to Miss Henderson since she would have exercised her sole remedy. However there is no risk of this causing a real difficulty since there is no realistic prospect of further royalties. Of course if the rights are purchased, All Around the World would have no right to make any further use of Pozer.

Conclusion

115. I find that All Around the World's release of Heartbroken was an infringement of Miss Henderson's performer's rights. As for Pozer, she is entitled to purchase the rights within a reasonable period if she wishes. I will hear the parties as to the consequential orders.