COPYRIGHT / CONTRACT
Record labels, artists
Marley bass player loses claim : Aston Barrett v Universal-Island records and Others  EWHC 1009 (Ch)
Aston Barrett, the bass player for Bob Marley and the Wailers, has lost a £60 million ($113.6 million) lawsuit over royalties and songwriting credits against Island Records and the Marley family. Barrett testified that he and his brother Carlton Barrett, a drummer for the reggae band who was murdered in 1985, did not receive the money they were due following Marley’s death from cancer in 1981. But Mr. Justice Lewison dismissed the suit on May 15 in a ruling at London’s High Court. Barrett will be liable for court costs. The Barrett brothers played on numerous Marley albums, including “Natty Dread,” “Rastaman Vibration” and ” Babylon by Bus”. They joined the band after Peter Tosh and Bunny Livingstone left – the Barrets had already achieved major success with their own band The Upsetters. The law suit claimed royalties owed under a 1974 contract with Island Records together with Aston Barret’s claims for songwriting royalties on songs he co-wrote with Marley. Whilst the band originally shared equally it was alleged that a new agreement was made in 1976 whereby Marley would take 50% of record royalties and the Wailers (the two Barret brothers) would share the rest. But during the trial Marley’s widow Rita and Island Records founder Chris Blackwell played down the contributions of the brothers and said Aston Barrett surrendered his right to further royalties in a 1994 agreement that paid him a share of a settlement figure of five hundred thousand dollars. This was critical to the outcome of the case when Mr Justice Lewison held that “There is, in my judgment, no reason to decline to enforce the settlement agreement against Mr. Aston Barrett. The judge also dismissed the Barrett’s claim to have written several of the band’s songs, including “War” and “Them Belly Full”. The judge, who concluded that Barrett had reconstructed events in his mind according to how he would like them to have been, also ordered Barrett not to commence any further legal action without the permission of the court (Barrett had previously sued the Marley estate in New York in 1986 and in both New York and Jamaica in 1989). He also sued in 1994 resulting in the settlement in which Island agreed to pay $500,000 (£264,000) and legal costs (Lewison J. held that this also settled the two 1989 actions). According to the judge, Barrett had the “greatest difficulty” in answering questions about business dealings and his testimony was not reliable.
The judgment also contains a very interesting analysis of performers rights and appears to distinguish Bassey v Icon Entertainment plc  EMLR 596 and qualify the recent Experience Hendrix LLC v Purple Haze Records Ltd decision. Section 182A of the Copyright Designs & Patents Act 1988 (implemented introduced by regulation 20 of the Copyright and Related Rights Regulations 1996, with effect from 1 December 1996 which itself implemented Council Directive 92/100/EEC of 19 November 1992) provides that:
A performer’s rights are infringed by a person who, without his consent, makes, otherwise than for his private and domestic use, a copy of a recording of the whole or any substantial part of a qualifying performance
It had been understood from Experience Hendrix LLC v Purple Haze Records Ltd (2005) EWHC 249 (Ch) that this right was retrospective and covered performances pre-1989. But Lewison J held that regulation 27 of the Directive was the relevant provision (in as much as this is a ‘new’ right) providing that there should be no retrospective application of the Act holding that this would mean that regulation 27 may, in principle, afford a defence to the claim
Lewison J also held that that the consent to one of (restricted) act such as recording a performance would not mean that consent was given for another of the restricted acts (such as issuing copies to the public). But the judge distinguishedBassey v Icon Entertainment plc  EMLR 59 holding that this was a decision to be made on the facts and pointing out that in Bassey the performer (Shirley Bassey) had expressly consented to recording but had expressly reserved a right of veto over any subsequent release. The Judge held that it was for Barrett to show that he had not consented and on the facts given found that Barrett either had consented (in as much as recordings were made pursuant to agreements) or had not shown that he had not consented, being clearly aware of a number of the recordings. Lewison J added “Had the question arisen for decision, I would have held that Mr Barrett had failed to establish the absence of consent in relation to the performances now complained of”.
See Music Law Updates: March 2006 News Updates
For a html version of the judgment see http://www.bailii.org/ew/cases/EWHC/Ch/2006/1009.html
See the article ‘Performers Rights by Jamie Barnard on this site (Articles).