No appeal, no cry

A music publisher, BSI Enterprises Limited, has failed in its appeal¹ regarding the ownership of copyright in 13 Bob Marley songs, including “No Woman No Cry” (Works).

The appeal turned on whether the Works were assigned by Cayman Music, Inc. (Cayman) to Island Logic Limited (Island) under a 1992 agreement (1992 Agreement). Rejecting the appeal, the Court of Appeal held that the Works did fall within the scope of the assignment to Island, despite the fact that the Works were not specifically referred to. The full background to the case can be found in our earlier article on the High Court decision here.

This decision is an example of how the courts apply the principles of contractual interpretation where disputes arise due to inconsistencies and ambiguities within an agreement.  It is an important reminder of the need for clear and consistent drafting when creating intellectual property agreements – and to avoid the “rather scrappy” drafting that the courts noted in this case.

The appeal

The appellants abandoned the case they had advanced before the High Court and instead put forward a new set of arguments that the 1992 Agreement did not, on its proper construction, contain the Works.  The appellants’ arguments included:

The ‘Compositions’ were not defined in the ‘Definitions’ section of the 1992 Agreement

The 1992 Agreement provided that the assets to be acquired included the “Compositions”.  The definitions section of the agreement contained a clause headed ““Composition” and “Catalogue”” and stated that:

“The term ‘Catalogue’ shall mean all presently-existing musical compositions … written recorded [sic] by [Bob] Marley… and/or certain musical compositions written or composed by Alfonso Pyfrom and/or Jimmy Norman … under their own names or under any pseudonyms … (individually a ‘Composition’ and collectively the ‘Compositions’) and all right, title and interest in and to such Compositions, including all copyrights … including … the Catalogue listed on Schedule 2 … Compositions also include all musical compositions owned by Seller which were recorded by [Bob] Marley…“

The appellants submitted that the term “Composition” was not effectively defined by this clause, and the fact the word “Composition” appeared in the clause heading was not relevant for the purpose of contractual interpretation.  The Court of Appeal rejected this, noting that the words in the middle of the clause – “individually a ‘Composition’ and collectively the ‘Compositions’” – clearly signified that all of the works identified in the preceding words are “Compositions” for the purposes of the agreement.  Furthermore, the court found that the final sentence of the clause clearly encompassed the Works.

The ‘Compositions’ were instead defined elsewhere in the 1992 Agreement

The Court of Appeal rejected the appellants’ attempts to discern alternative definitions of “Compositions” elsewhere in the 1992 Agreement.  A warranty later in the agreement stated that “Schedule 2 contains a complete and accurate list of the Compositions”.  Schedule 2 did not contain the Works.  The appellants submitted that the Works surely would have been expressly mentioned if they were included in the agreement.  However, the court considered this argument “unsustainable”.  The clause was a warranty and did not purport to be a definition of the term “Compositions”.  Furthermore, Schedule 2 was specifically identified (in the extract of the agreement above) as being a non-exhaustive list by use of the word “including”.

The “Preliminary Statement” narrowed the scope of the assets being assigned

The appellants also submitted that a “Preliminary Statement” in the agreement, which referred to the fact that “certain” publishing interests were being sold, operated as a limitation.  The Court of Appeal rejected this as attaching far more weight to the word “certain” than it could possibly bear.  The court preferred an interpretation that the words simply meant that the extent of the assets being sold was to be determined by reference to the terms of the agreement.

The High Court judge erred in considering the circumstances surrounding the agreement

The appellants asserted that the High Court judge fell into error in seeking to ascertain the parties’ intentions regarding the scope of the agreement from the surrounding circumstances.  In particular, that he should not have had any regard to the fact that Island had wanted to acquire as many Marley rights as possible.  The Court of Appeal rejected this argument and held that the judge directed himself entirely properly as his task was to ascertain the meaning which the agreement would convey to a reasonable person having all the background knowledge which would have reasonably been available to the parties in the situation in which they were in 1992.  This would exclude declarations of subjective intent, but Island’s desire was part of the ‘factual matrix’ and could assist the court in determining the objective intentions of the parties.

Accordingly, the Court of Appeal concluded the Works were transferred by Cayman to Island under the terms of the 1992 Agreement and could not therefore be owned by the appellants.

Kieran Lavery, Trainee Solicitor, Michael Simkins LLP