Bourne and others v Davis (trading as Brandon Davis Publishing)

July 2006


This case involves the successful pop musician James Bourne, most latterly of Son of Dork and previously with Bustedin a contest with a certain Brandon Davis who tried to release some early recordings featuring Bourne. Between December 2000 and October 2001 Bourne and three other musicians wrote and performed songs together. While developing songs and compositions they recorded a set of nine songs in a hotel room in London. Later, the four stopped performing together. Bourne then became involved in Busted, and concluded a recording contract with the second claimant. By that contract Bourne assigned all his rights, including his performer’s rights (section 180 of the Copyright, Designs and Patents Act 1988) for recordings made before the date of the contract. Busted then had a bust-up and stopped playing together and Bourne joined a new group, Son of Dork. At this juncture Bourne signed yet another contract, this time with the third claimant (an affiliate of the second claimant), which also took an assignment of his performer’s rights for performances occurring before the date of that contract. However Davis made a compact disk comprising an album of the nine tracks performed by the original group of four musicians. The CD was advertised on a website and with printed flyers, for sale by mail order. Bourne and his two assignees (record labels) sued for infringement of his performer’s rights and for passing-off, seeking summary judgment. They asked for a permanent injunction, delivery-up of infringing materials and printed flyers and damages. Davis denied liability, saying he was the assignee of the performer’s rights under an agreement made with another member of the original group, who purportedly signing the assignment on behalf of ‘the partnership’ of the four original musicians. Mark Herbert QC sitting as a deputy judge of the High Court (Chancery Division) granted summary judgment. On the evidence, Davis (who was unrepresented) had no real prospect of defending the issue and there was no other compelling reason why it should be disposed of at a trial. He agreed that it was at least arguable that the property rights in issue were partnership property. But, even if the property rights were partnership property, that did not mean that they became exclusively the property of ‘the partnership’ to the extent of divesting the rights conferred on the four individual musicians, or so as to divest them of their beneficial interests in those rights. On the facts, Bourne’s reproduction and distribution rights in the relevant performance had been infringed.

From the Professor Jeremy Philips writing on the most excellent IPKat blog:

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