Case No. IP-2017-000178

15.FBT’s main claim is for the loss of an opportunity to offer a series of vinyl records of singles taken from the Work and the Work itself. Mr Martin explained this claim as follows. 16.The Work was recorded by FBT and was released on 12 November 1996 as 250 cassettes and 250 vinyl records. It was not a great success. Eminen’s second and third records, the “Slim Shady EP” and the “Slim Shady LP” were much more successful, and he is now a very famous artist. 17.There had been a 10th anniversary issue of “Slim Shady” in 2009. FBT wanted to make something of the 20th anniversary of the Work and began to plan that sometime in 2016. There was no evidence about when exactly the planning started. However, timing was important because the first track had to be released in November 2016 and everything needed to be ready for that. 18.19.Mr Martin said that FBT’s plan went further than this. It was to make a digital and physical release of the title track followed by 5 or 6 further tracks from the album. These further single releases would be spaced about six weeks apart to keep the momentum going. The digital release of the further tracks would be accompanied by a limited physical vinyl release. Once the singles had been released, the plan was to release an album which would either be a re-release of the original Infinite album or a new compilation of the various re-mixed singles. Fans would have the choice to purchase the tracks as singles or altogether. The album would have been released on 12-inch vinyl and would not have been an exact repeat of the 1996 album. It would have been an expanded version including bonus tracks, a cappella versions and freestyles. 20.On 4 August 2016 a vinyl copy of the LTEV version of the Work was found in a record store in Detroit and drawn to FBT’s attention. It was in LTEV packaging including a label on the cover which said “LTEV” and an LTEV product number. Mr Martin said that FBT was “astounded” and “completely blindsided” by this and that it called into question the viability of the vinyl release of the Work. He was particularly concerned that fans would mistake the LTEV product for the proposed reissue. The original tapes of the Work would not have been used for LTEV’s copies which would have been a lower quality product. 21.An annex to the Amended Points of Claim shows that both genuine and a variety of copy versions of the Work were at that time available on vinyl. FBT’s letter before action of 5 December 2016 attached a print-out from Plastic Head’s website that showed that FBT’s version was marked with an “LTEV” product number. That also indicated that it was not an authentic pressing. 22.Mr Martin said that he had made oral arrangements for a vinyl pressing with a contractor he had known for many years and with whom he dealt by telephone and not in writing. Due to his concerns he put the pressing of the vinyl on hold on the basis that he could return to it up to 4-6 weeks before it was due out on the anniversary in November 2016. 23.By an agreement made on 9 November 2016, FBT licensed AWAL Digital Limited, a subsidiary company of Kobalt Music Group, to distribute the title track digitally, for example on platforms such as Spotify and Apple Music. 24.That agreement was titled “Digital Distribution Agreement” and granted exclusive rights to digital distribution worldwide. The revenue earned by AWAL from exploitation of the digital works delivered by FBT was to be split 90/10 between FBT and AWAL. 25.Mr Martin was not able to say when he took the decision not to proceed with the vinyl release. He said that it followed the 4 August discovery of the LTEV record. It seems, however, that the decision was taken in late October or early November. Mr Martin said that FBT’s plans were not firm at the point that the vinyl project was abandoned. 26.Mr Levine’s evidence was as follows. He had worked with Mr Martin for over 20 years, advising on marketing. Mr Martin had contacted him in 2016 about the reissue of the Work. An email exchange between them showed a conversation about producing the plan in August 2016, with Mr Martin following up on 24 August. Mr Levine sent the business plan to Mr Martin on 25 August 2016. 27.Mr Levine’s plan focused on keeping the re-issue “super cool and exclusive”. He thought fans would be very excited by this. FBT intended to produce vinyl as late as the second half of October 2016 (which was still in time for the November anniversary). As part of the publicity of the project for the re-issue Rolling Stone magazine published an interview with Jeff Bass of FBT on 17 November 2016. Mr Levine said that this interview was probably given about a month before it was published. The article refers to a re-mix of the Work with no samples in it, and it says that new re-mixes of some tracks would appear on digital services and limited-edition vinyl. 28.Mr Levine explained that his marketing plan was a proposal and was not firm. Some of his ideas would have required licences of merchandising from third parties which were not obtained. 29.Mr Levine understood that the digital release of the title track had already been scheduled for release when the decision was made not to proceed with the vinyl project. That indicated that the decision not to release vinyl was taken in late October or early November 2016. 30.On 17 November 2016, FBT made a digital release of a re-mastered version of the title track “Infinite” from the Work. This digital release was a single track that was only available for streaming or mp3 download. A documentary was released on YouTube that referred to the anniversary. It referred to the digital release and was not used to promote physical sales. 31.FBT purchased a further copy of the LTEV release in late November 2016, and it appeared that this was for use in legal proceedings. The letter before action included a screenshot of the Plastic Head website which showed the LTEV vinyl record was for sale at £18.50. 32.There was some debate about the prices that might have been charged for the vinyl records had they been released. Mr Martin’s evidence was that the singles would have been priced at US$20.16 (signifying the year) and that the album would have been US$50. He said that FBT would have been able to keep 90 per cent of that on the basis that this was the split that FBT obtained on the digital release of the Work. Mr Martin was not clear, however how the pricing would have worked in practice. If retailers had charged $20.16 then that would not have left anything for a distributor, and it became clear that this price was intended to be the price that would have been charged to end customers rather than the price at which FBT would have sold to distributors. Mr Martin was also not clear that the profit split that could be obtained for a digital release, where there are no manufacturing overheads, could have been obtained for a vinyl release. 33.Mr Martin’s evidence was that FBT would not have granted a licence to LTEV because LTEV was not a sufficiently reputable or substantial company.