Case No. IP-2015-000167

The OML Agreement 9.10.Some time in 1973 Mr Dorset fell out with Mr Cohen. It appears that there followed a period of discussions during which the OML Agreement remained in force, covering July 1973 when Alright was released. The OML Agreement was terminated by a written agreement dated 1 November 1973, releasing all parties of their respective obligations. The parties also agreed that the copyright in certain songs listed in a schedule would remain the property of OML and that OML would remain obliged to pay Mr Dorset income due to him from those songs on the terms set out in the OML Agreement. Alright was not among the songs listed. Mr Cohen’s evidence was that he knew nothing about the song at that time.The origin of the song Alright11.There was a transcript of an interview given in 1973 by Mr Dorset to Nicky Horne, a disc jockey at the BBC. It included this:“Interviewer: Finally let’s talk about your new record ‘Alright, Alright Alright’. Who wrote it?RD: [Laughter] It’s a French song. A guy called Jacques Dutronc recorded it … recorded it about 6 years ago. It’s called in French…it’s called ‘Et Moi Et Moi Et Moi’ …… I heard it at a party. Just before ‘In the Summertime’ was released in fact. … I thought it was really good and when I went over to France a little while later I said to the guy from the record company you know can you send us a copy over and he sent me a copy over and then we found that…a sort of English version with…like someone had written some lyrics to it and so I just changed the arrangement and things around a bit and we decided on this one.”12.In Mr Dorset’s second witness statement in these proceedings, dated 14 January 2014, he acknowledged hearing Et Moi over and over again at a party hosted by one of Peter Sellers’ make-up artists. He said the party was in 1972. EMA’s complaint 13.Shortly before Alright was released in July 1973, the record came to the attention of Jacques Wolfsohn who was then Artistic Director (equivalent to head of A&R) of the Disques Vogue record label in France. The owner and chairman of Disques Vogue was Léon Cabat. Mr Wolfsohn and Mr Cabat had a further commercial association in that both were joint owner and managing director of EMA.14.Mr Cabat played Mungo Jerry’s record to Mr Wolfsohn because he believed the music to be a copy of the song Et Moi, Et Moi, Et Moi (“Et Moi15.Mr Wolfsohn apparently agreed with Mr Cabat that the music of Et Moi had been copied by the writer of Alright. In France the record was released on the Pye label. Mr Wolfsohn said that Mr Cabat called Louis Benjamin, who was then head of Pye Records in London. There followed a meeting between Mr Wolfsohn, Mr Benjamin and Barry Murray. Mr Murray was not only part owner of OML, he was also a producer at Pye and at that time Mr Dorset’s manager. Settlement of EMA’s complaint 16.This meeting resulted in a written agreement signed in Paris on 29 May 1973 (“the 1973 Assignment”). Under the terms of the 1973 Assignment Mr Dutronc, was to be identified as the composer of Alright, Mr Lanzmann was to be identified as one author of the lyrics (despite having apparently contributed nothing to the lyrics) together with an individual given the name ‘Joe Strange’, who was to be credited as co-author. The copyright in both the music and lyrics of Alright were assigned to EMA. By implication, Mr Murray and Mr Benjamin had accepted that the music of Alright had been copied from Et Moi.17.Mr Wolfsohn’s evidence was that the 1973 Assignment was signed by Mr Murray, which implies that he signed as ‘Joe Strange’, although no explanation was given for this by Mr Wolfsohn.18.There followed a letter dated 6 June 1973, signed by Mr Murray (under his own name) and Mr Wolfsohn, which appears to have had the effect of a written agreement by which half the proceeds received by EMA from the exploitation of Alright would go to Caesar Music Limited, Mr Murray’s publishing company, and a further one eighth to the ‘writer’ of the song, left unidentified.19.In letter dated 15 June 1973 from ‘Joe Strange’ to EMA, Mr Strange authorised EMA to collect royalties due from exploitation of Alright from royalty collecting societies, on behalf of Mr Strange. The royalties were to be paid to Caesar Music. The signature by Mr Strange is the same as that used by Mr Murray in the 1973 Agreement.Mr Dorset confirmed as joint author of the lyrics of Alright20.As I have said, Mungo Jerry’s record of Alright was released in July 1973, in the UK on the Dawn label. The physical label on the single identified the words and music as being by Jacques Dutronc, Jacques Lanzmann and Joe Strange.21.By a letter dated 25 June 1973 Mr Wolfsohn registered Joe Strange’s rights as joint-author of Alright with SACEM, the French royalty collecting society. There is good reason to believe that at least some of these royalties were paid to Mr Dorset. I was shown royalty statements from EMA to “Joe Strange (Ray Dorset)” for sums due from the exploitation of Alright.22.In 1975 Mr Dorset and his manager, Mr Murray parted company, not on good terms. One possible reason was that Mr Murray had falsely registered some of Mr Dorset’s songs with PRS, one of the British collecting societies, under Mr Murray’s own name as sole composer. Mr Murray either came clean or Mr Dorset otherwise found out. They both wrote to PRS and asked it to rectify the position. In a letter to Mr Dorset dated 5 July 1976, PRS informed Mr Dorset that several songs had, at his and Mr Murray’s request, been re-registered in Mr Dorset’s name. The exception, PRS said, was Alright, in relation to which PRS had understood Jacques Dutronc to be the composer and the lyrics to have been authored by Jacques Lanzmann and Mr Murray. PRS proposed to change this only to the extent that Mr Dorset would be substituted joint author of the lyrics in place of Mr Murray. There was no record of Mr Dorset disputing this. Mr Cohen returns to assist Mr Dorset 23.In 1978 Mr Dorset set up a company of his own, Kareen Music Limited, as the vehicle through which he published his music. In the mid-1980s the company changed its name to Satellite Music Limited (“Satellite”).24.Around 1990 Mr Cohen returned to give business advice to Mr Dorset for the first time since the termination of the OML Agreement. Mr Cohen was, at least by then, a director of AMI. In 1990 Mr Dorset sold 50% of Satellite to Mr Cohen’s wife, who also became co-director with Mr Dorset.The back-dated registration of Alright with PRS and MCPS25.Mr Dorset’s evidence was that in around 1993 he realised that he had not received royalties due to him for Alright and spoke about it to Mr Cohen. The solution they devised, it seems, was retrospectively to register Mr Dorset with PRS and MCPS as the sole composer of Alright. MCPS is another of the British collecting societies, responsible for what are known as mechanical royalties arising from use of recorded music. I was shown a form, marked ‘MCPS Copy’, which appears to be an application to PRS and MCPS to register the performing and mechanical rights in Alright with PRS and MCPS. Mr Dorset is identified as the sole writer. The proposed split of performing rights royalties is 50/50 between Mr Dorset and Satellite. 100% of the mechanical royalties are said to be due to Satellite. Strikingly, the form is dated 11 June 1972. It was signed by both Mr Dorset and Mr Cohen and, as is common ground, was deliberately back-dated – in fact to a date before Alright had even been written and before Satellite existed. Mr Cohen did not deny signing the form, but disclaimed any recollection of discussing it with Mr Dorset and gave no explanation as to why it was sent. Plainly the form was inconsistent with earlier registrations with PRS and the ownership of the relevant rights. Nonetheless, it appears that PRS and MCPS accepted the application and the registration was successful. The Satellite Assignment 26.By around the end of 2007 disagreements once again had had broken out between Mr Dorset and Mr Cohen. On 14 February 2008 Mr Dorset, Mr and Mrs Cohen, AMI, Satellite and three other of the Cohens’ companies entered into an agreement to resolve their various disputes. As part of the settlement, Satellite, Mr Dorset and AMI entered into a further agreement on 14 February 2008 (“the Satellite Assignment”). Under its terms Satellite assigned, or purported to assign, copyrights in about 350 musical works to Mr Dorset and AMI, in the proportions 75% to Mr Dorset and 25% to AMI. Performance rights were separately assigned: performance income by way of royalties from PRS were to be split equally between Mr Dorset and AMI. The copyright works assigned included Alright, which was listed in a Schedule C. This schedule was stated to contain musical compositions owned or controlled by Satellite and written in whole or in part by Mr Dorset. The agreements with Universal and Sony/ATV 27.In an agreement dated 10 September 2008 Mr Dorset, through ITSL, exclusively licensed to Universal, as publisher, or purported to license, his 75% of the copyright in his songs, including Alright. 28.Mr Hanke told me that following the Satellite Assignment, AMI similarly entered into a publishing agreement with Sony/ATV in relation to AMI’s 25% share of the copyright in Mr Dorset’s songs, including Alright. I don’t think that is right, although Mr Poplawski did not challenge this part of AMI’s case and indeed in his skeleton Mr Poplawski asserted that AMI licensed its ‘Satellite content’ to Sony. I was not directed to the agreement with Sony/ATV during the trial; its relevant terms were undisputed and given little attention.29.After the trial I could find no copy of such an agreement in the quite extensive documents. Mr Cohen refers to it in his evidence as “an administrative agreement between AMI and [Sony/ATV]”, but supplies no date. In paragraph 24 of the AMI’s additional claim it is referred to an “agreement with [Sony/ATV] to exploit certain compositions”, again with no date. Mr Dorset’s pleaded response to paragraph 24 (his paragraph 6) does not dispute the existence of such an agreement but says nothing about it.30.31. 32.I return to the chronology as I have come to understand it. Until 2010 EMA had unsurprisingly continued to assume that it owned the entire copyright in Alright. But in that year EMA discovered that there was a potential challenge to its ownership. The Israeli collection society had received a request to register Mr Dorset as the sole writer. The request had come from the administrator of the catalogue of Universal. This led to a chain of further investigation. In May 2011 EMA found out that Alright had been used in the soundtrack to a BBC film, ‘West is West’, for which EMA had received no royalties. EMA was told that the producers of the film had obtained synchronisation licences from Universal and Sony/ATV for £4,000. EMA went on to find out that Alright had been used in other films and in commercials around the world, again licensed by Universal and Sony/ATV, in many instances for substantially larger sums.33.On 6 June 2011 solicitors acting for the UK licensee of EMA, Alpha Music Publishing UK Limited, wrote to BBC Films alleging that their use of Alright34.Mr Dorset’s solicitors responded to AMI’s solicitors in a letter dated 20 June 2011:“We are instructed by our client that Alright, Alright, Alright is not an English language version of the French composition entitled Et Moi, Et Moi, Et Moi. Mr Dorset has confirmed that he is the original composer of Alright, Alright, Alright which was created by him without copying any other source. Consequently, Mr Dorset views the allegations made by Alpha Music Publishing UK Limited as misconceived.We understand that Mr Cohen of your client is aware of the origins of this composition (having previously had day-to-day control of Satellite Music Limited and appointed himself as a director of the company) and will verify the same to you as and when he has fully recovered from his recent operation.” The claim by EMA in the present proceedings 35.36.Mr Dorset’s pleaded Defence was that he wrote Alright, that it was not copied from Et Moi, that he had not signed and was not party to the 1973 Assignment by which the copyright in Alright had purportedly been assigned to EMA and that therefore EMA did not own the copyright in Alright. By way of an alternative argument, Mr Dorset’s Defence stated that if he had been a party to the 1973 Assignment, he had not received the royalties due to him under that agreement and he counterclaimed for the sums due.37.AMI pleaded that it had no direct knowledge of who wrote Alright, but relied on the Satellite Assignment by which, it said, it had received 25% of the copyright. AMI also relied on the letter of 20 June 2011 from Mr Dorset’s solicitors. AMI accordingly did not admit that EMA owned the copyright in Alright.38.As I have indicated, shortly before the trial, on 7 March 2014, EMA settled its claims by means of the 2014 Settlement Agreement and subsequent agreements.39.Among these further agreements was one dated 7 July 2015 by which EMA’s claim against AMI was settled. The terms included payment of £33,600 by AMI to EMA.