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Bulletins Story:
JIMI HENDRIX HEIRS OBTAIN INJUNCTION TO PREVENT EXPLOITATION
OF MASTERS: EXPERIENCE HENDRIX LLC v PPX ENTERPRISES INC AND EDWARD
CHALPIN
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Date: 30.7.2002
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The High Court has granted a company owned by the family of the
late Jimi Hendrix an injunction to prevent further exploitation of
old master tapes in breach of a 1973 consent order but declined to
order damages.
Jimi Hendrix signed an exclusive recording agreement with PPX in
1965. In 1967 PPX’s owner and president Mr Chalpin sued Jimi
Hendrix in relation to recordings released by Jimi Hendrix and his
group “The Jimi Hendrix Experience”. The proceedings were
settled on the basis of a consent order in 1973 under which PPX and
Mr Chalpin agreed not to exploit a number of master tapes and to
deliver the master tapes up to Jimi Hendrix’s estate.
Experience Hendrix, the claimant in these proceedings, is a
company owned and controlled by the family of the late Jimi Hendrix
and is the successor in title to his estate. The claimant alleged
that PPX and Mr Chalpin had licensed a number of recordings in
breach of the 1973 consent order.
The claim succeeded and Mr Justice Buckley granted a permanent
injunction preventing the further exploitation of the master tapes
by PPX and Mr Chalpin.
The case is notable for the following reasons.
- Delay can be fatal in a claim for equitable remedies such as a
permanent injunction. Mr Justice Buckley found on the facts
that it was acceptable that Experience Hendrix should seek to
prevent further exploitation contrary to the 1973 consent order
despite the fact that Jimi Hendrix’ estate had failed to act in the
years since the order. The estate’s failure to act previously
appears to have been due to its belief that litigation was not in
its best interests and to its perception that the recordings
licensed by PPX were not a real threat to the estate’s
releases.
- An injunction was also granted against Mr Edward Chalpin
personally as he was a party to the 1973 consent order and was
clearly the moving force behind PPX.
- Experience Hendrix’s and the Hendrix estate’s previous
indifference to the delivery up of the master tapes and their undue
delay did however lead the judge to refuse to grant an order for
delivery up of the master tapes. Delivery up is also an
equitable remedy.
- Experience Hendrix asked for damages to be assessed on either a
compensatory basis or on the basis of an assessment of the profit
made by PPX from its licensing of the master tapes.
The judge declined to order an assessment of damages on either
basis as he said it was clear from the evidence that Experience
Hendrix would never have agreed to PPX’s exploitation of the poor
quality recordings. He added that the evidence as a whole
demonstrated that an assessment of damages on the basis of what a
hypothetical party might have paid Experience Hendrix for the right
to exploit the master tapes would be a wholly fictional
approach.
The decision shows that delay need not necessarily be a bar to
obtaining a permanent injunction. Each case will depend on
its own facts. A claim for a permanent injunction should be
distinguished from an application for an interim injunction (ie a
temporary injunction granted pending a final trial of the claim)
where delay is usually fatal. The decision also emphasises
the importance of putting persuasive evidence before the court in
relation to damages.
30 July 2002
135
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