Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd

[1924] 1 K.B. 762

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(Judgment by: McCardie J (including background))

Between: Performing Right Society Ltd
And: Mitchell and Booker (Palais de Danse) Ltd

Court:

Judge:
McCardie J

Subject References:
COPYRIGHT
MUSICAL WORK
INFRINGEMENT
Performance in Hall by Band
Servants or independent Contractors
Express Prohibition of Infringement of Copyright
'Authorising' Performance

Legislative References:
Copyright Act, 1911 (1 & 2 Geo. 5, c. 46) - s. 1, sub-s. 2; s. 2, sub-s. 1

Case References:
Fenning Film Service v. Wolverhampton, Walsall and District Cinemas - [1914] 3 K. B. 1171

Hearing date: 28-29 January 1924
Judgment date: 6 February 1924

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Judgment by:
McCardie J (including background)

The Copyright Act, 1911, s. 1, sub-s. 2, provides that

"for the purposes of this Act 'copyright' means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever, to perform .... the work or any substantial part thereof in public .... and shall include the sole right"

to do certain specified things,

"and to authorise any such acts as aforesaid."

Sect. 2, sub-s. 1:

"Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything, the sole right to do which is by this Act conferred on the owner of the copyright. ....":-

Held, that the word "authorise" in s. 1, sub-s. 2, is superfluous, and that there is nothing in the sub-section which cuts down the liability under s. 2, sub-s. 1, in respect of an infringement of copyright.

Fenning Film Service v. Wolverhampton, Walsall and District Cinemas [1914] 3 K. B. 1171 considered.

The defendants, who were the occupiers of a dancing hall, engaged, on the terms of a written agreement, a band to provide music therein. The agreement provided that the band should not, in the music played, infringe any copyright, and should be liable for damages and costs caused by any infringement. There was also a notice posted in the hall that

"only such music as may be played without fee or licence is allowed to be played in this hall."

On one occasion the band played certain music the copyright of which belonged to the plaintiffs, without the plaintiffs' licence; but the defendants did not know, and had no reasonable ground for suspecting, that this infringement would take place. In an action by the plaintiffs for damages and an injunction:-

Held that, on its true construction, the agreement between the defendants and the band constituted the latter the servants of the defendants, and not independent contractors; that the band on the occasion in question were acting in the course of their employment; that the defendants were liable under s. 2 of the Copyright Act, 1911, for the infringement of copyright; and that the plaintiffs were entitled to damages and an injunction.

The tests for deciding whether a person is a servant or an independent contractor considered.

Action tried by McCardie J.

The plaintiffs, who were the proprietors of the sole right of performing in public certain musical works, including two known as "J'en ai marre" and "Mon Homme," alleged that on November 30, 1922, the defendants infringed their copyright in those two musical works by performing them in public at their Palais de Danse, Hammersmith, or by authorizing their performance in public without the plaintiffs' consent; and further, or in the alternative, the plaintiffs alleged that the defendants infringed the plaintiffs' copyright in those two musical pieces by permitting their Palais de Danse to be used for the said performance for their private profit without the plaintiffs' consent.

The defendants denied that they performed or authorized the performance of the two musical works, and said that they were not aware and had no reasonable ground for suspecting that the performance at their Palais de Danse would be an infringement of copyright; and they relied on a printed notice put up in the hall to the effect that "only such music as may be played without fee or licence is allowed to be played in this hall," and, further, upon a clause in their contract with the band that the band should not infringe any copyright, and should, in the event of infringement, be liable for damages and costs incurred by infringement.

The infringement alleged was by a band engaged under a written agreement by the defendants to play in the Palais de Danse, and the judge found as a fact that there was an infringement by the band.

Hon. S. O. Henn Collins for the plaintiffs.

Grant K.C., St. John Field and Lloyd-Williams for the defendants.

Cur. adv. vult.

Feb. 6. McCardie J. read his judgment, which after stating the facts and setting out ss. 1 and 2, sub-ss. 2 and 3, of the Copyright Act, 1911, continued:

The vital question is whether the defendants are responsible for the acts of the band. Mr. Henn Collins for the plaintiffs abandoned the claim against the defendants under s. 2, sub-s. 3. I think he was right in doing so. Excluding the question of the liability of the defendants for the acts of the band, I am satisfied that the defendants did not "permit," within the meaning of s. 2, sub-s. 3, the infringing performances. They did not know that the infringing performances would take place or that they were in fact taking place. They had no reasonable ground for suspecting that there would be an infringement of copyright by the band. No programme of music was printed or announced. Clearly printed notices were put up by the defendants which were worded as follows:

"To Band Conductors, Musicians, etc. Important. Only such music as may be played without fee or licence is allowed to be played in this Hall. Controlled music is strictly prohibited and the proprietor will not be responsible for any infringement."

The plaintiffs, as I have said, owned a large number of copyright pieces. But outside the range of the plaintiffs' ownership there was a very extensive list of dance music which could be given by the band.

I must further state that the contract with the band (with which I will deal hereafter) contained a clause that the artists should not infringe any copyright or other proprietary rights of third parties and should in the event of infringement be liable for damages and costs incurred by the infringement. The contract between the defendants and the band was made on December 20, 1921. It was expressed to be made between the defendants (called the management) and the band of five jazz musicians, known as the Original Lyrical Five, under the management of Syd Roy (thereinafter called "the Artists"). It contained twenty-four clauses. The question was fully and ably argued before me whether under that contract the band were independent contractors or were servants of the defendants. If the band were servants, then, subject to the other points raised, the defendants are prima facie liable for the infringing performances on the principle of qui facit per alium facit per se. If the band were independent contractors then, subject to other points raised by the plaintiffs, the defendants prima facie are not liable. I point out at once that in two cases which have recently been before the Courts the points here at issue did not arise for decision. Mr. Henn Collins, counsel for the present plaintiffs, was counsel in each of those other cases, and he informs me that in Performing Right Society v. Ciryl Theatrical Syndicate, ^[F1] and in Performing Right Society v. Bradford Corporation, ^[F2] the bands in question were servants in the full legal sense.

Now, before I deal with the first important matter, let me state one or two things which are, I conceive, plain. First, that the band themselves could have been sued for infringement of copyright. A band, however, is often a migratory thing, and an action against it only might be of small avail to the plaintiffs. Secondly, that the defendants would be clearly liable for infringement although the band were in law and in fact independent contractors if the defendants had actively directed, counselled or aided, the infringement: see per Tindal C.J. in Petrie v. Lamont, ^[F3] M'Laughlin v. Pryor, ^[F4] and Cargill v. Bower; ^[F5] and see also per Bowen L.J. in Donovan v. Laing, Wharton, and Down Construction Syndicate. ^[F6] I feel, too, that Marsh v. Conquest ^[F7] is, after all, a mere illustration of the same principle. This rule of law is not, I think, cut down by the words of s. 2, sub-s. 3, which enlarge rather than limit liability. Thirdly, that the question whether a man be a servant or an independent contractor is often a mixed question of fact and law. If, however, the relationship rests upon a written document only, the question is primarily one of law. The contract is to be construed in the light of the relevant circumstances.

It seems convenient, ere examining the agreement with the band, to consider the tests to be applied in deciding whether a man be a servant or an independent contractor. Those words have been discussed in many cases. Definition has been difficult: see Macdonell's Master and Servant, 2nd ed., p. 9. The word "servant" has been used in many aspects and in many statutes. Here we are freed from any question of the context or purpose of an Act of Parliament.

The case is to be decided on general principles. The decisions are numerous and not always easy to follow. The distinction between "servant" and "independent contractor" does not seem to rest merely on the magnitude of the task undertaken. Thus, whilst a labourer employed to cleanse drains at 5s. for the job was held to be a servant and not a contractor: see Sadler v. Henlock, ^[F8] a plumber called in by a landlord to mend a leaky cistern was held to be an independent contractor and not a servant: see Blake v. Woolf. ^[F9] A licensed drover has been held to be an independent contractor and not a servant: see Milligan v. Wedge, ^[F10] on the ground that he exercised an independent calling. So, too, in Rapson v. Cubitt ^[F11] a gas-fitter was held to be an independent contractor.

On the other hand, I conceive that a general manager, at a high salary, of a partnership, or the managing director of a limited company at an even higher salary, are usually servants and not independent contractors, and in many cases a partnership or a limited company has been held liable for their negligence or breach of duty. The word "salary" may be as applicable to a servant as the word "wages," for the use of the word "salary" is only a matter of fashion and etiquette: see per Lord Sumner in Great Western Ry. Co. v. Bater, ^[F12] and see also Moriarty v. Regent's Garage and Engineering Co., ^[F13] and In re Countess of Rosse. ^[F14] The nature of the task undertaken, the freedom of action given, the magnitude of the contract amount, the manner in which it is to be paid, the powers of dismissal and the circumstances under which payment of the reward may be withheld, all these bear on the solution of the question. But it seems clear that a more guiding test must be secured. In Macdonnell's Master and Servant, 2nd ed., p. 7, a servant is defined as "one who for a consideration agrees to work subject to the orders of another." This is useful but not, I venture to think, complete. The following words from Smith's Master and Servant, 7th ed., p. 238, give point to that remark:

"The employer [i.e. of an independent contractor] may nevertheless reserve to himself by contract general rights of watching the progress of the works which the contractor has agreed to carry out for him, of deciding as to the quality of materials and workmanship, of stopping the works or any part thereof at any stage, and modifying and altering them, and of dismissing disobedient or incompetent workmen employed by the contractor, and yet he will not thereby of necessity render himself liable to third persons for the negligence of the contractor in carrying out the works."

I may refer to Reedie v. London and North Western Ry. Co.; ^[F15] Steel v. South Eastern Ry. Co. ^[F16] (a striking case); and Hardaker v. Idle District Council. ^[F17] That passage in Smith's Master and Servant shows the difficulty of decision in certain cases. It seems, however, reasonably clear that the final test, if there be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant. This circumstance is, of course, one only of several to be considered, but it is usually of vital importance. The point is put well in Pollock on Torts, 12th ed., pp. 79, 80:

"The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, 'retains the power of controlling the work': see per Crompton J. in Sadler v. Henlock. ^[F18]

A servant is a person subject to the command of his master as to the manner in which he shall do his work: see per Bramwell L.J. in Yewens v. Noakes, ^[F19] and the master is liable for his acts, neglects and defaults, to the extent to be specified.

An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand."

The rule is stated in much the same way in Salmond's Law of Torts, 6th ed., p. 96, where that able jurist says:

"A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master";

and he illustrates his statement as follows:

"Thus, my coachman is my servant; and if by negligent driving he runs over someone in the street, I am responsible. But the cabman whom I engage for a particular journey is not my servant; he is not under my orders; he has made a contract with me, not that he will obey my directions, but that he will drive me to a certain place; if an accident happens by his negligence he is responsible, and not I."

I need not here mention the cases quoted by the author on the points he is dealing with. So, in like fashion also is the matter dealt with in Clerk and Lindsell on Torts, 7th ed., pp. 65, 66, where it is added:

"Those agents of the former class whose employment is more or less continuous are usually styled servants, whilst those whose employment is intermittent or confined to a particular occasion, are usually called by the generic name of agents. Between servants, however, and other agents over whom the employer reserves control, there is no distinction in point of law; the employer is liable for the torts of the one to the same extent and subject to the same conditions as he is liable for the torts of the other."

I need only refer further to the words of Bowen L.J. in Donovan v. Laing, Wharton, and Down Construction Syndicate. ^[F20] They are these:

"By the employer is meant the person who has a right at the moment to control the doing of the act."

This judgment of Bowen L.J. was approved by the Privy Council in Bain v. Central Vermont Ry. Co. ^[F21] It is not without interest to observe that much the same rule prevails in criminal as in civil law, and many of the decisions are instructive. I need only make reference to Archbold's Criminal Pleading, 26th ed., pp. 601, 612, and to the judgment of Blackburn J. in Reg. v. Negus, ^[F22] where he says:

"The test is very much this, viz., whether the person charged [that is, as a clerk or servant] is under the control and bound to obey the orders of his master. He may be so without being bound to devote his whole time to this service; but if bound to devote his whole time to it, that would be very strong evidence of his being under control."

Bearing these matters in mind, I briefly summarize the agreement of December 20, 1921, with the band. It provided for five jazz musicians - namely, a pianist, Mr. Syd Roy, a violinist, an alto saxophonist, a soprano saxophonist, and a drummer. They were called the artists and were described as under the management of Syd Roy. Clause 3 was as follows:

"The artists agree to appear and perform both afternoon and evening each day including Sundays at such time as may be fixed by the management"

- that is the defendants -

"not exceeding seven hours per day as musicians for dance music and to entertain by singing and playing to the best of their skill and ability and to the satisfaction of the management at the Palais de Danse or any place in which the management or its managing director is interested, either in London or elsewhere."

This clause, however, is a little modified by cl. 24, to the effect that the artists are not to be sent out of London without their consent. Clause 4 provided that the artists should provide their own instruments and play the latest music, but should not infringe any copyright and should be liable for damages and costs caused by infringement. Clause 5 was that none of the artists should perform at any restaurant, club, or place of entertainment, either public or private, or assist in the making of records, without the permission of the defendants. Clause 6 was that if an artist fell ill the defendants could replace him with a deputy and should be liable only to pay the net cost of the deputy. Clause 7 provided:

"This contract is made, and, subject to its clauses and stipulations, shall remain in force for one year, during which period the services of the artists shall be wholly at the exclusive disposal of the management."

It further stated that though every effort would be made to keep the artists employed (such is the actual word), yet the defendants did not guarantee more than forty weeks for the services (such is the actual word) of the artists. It also provided that the defendants could determine the contract at the end of the third, sixth or ninth month, on notice in writing. Clause 8 said:

"Syd Roy shall (subject to the rights express or implied of the management hereunder) exercise the control and management of the orchestra, but shall comply with instructions which shall be given to him from time to time by the management or its duly accredited representative as to the nature of the music rendered, and he and the members of the orchestra shall comply with the rules and regulations of the management."

Clause 9 provides that the artists shall, in the event of a special fete, work more than seven hours without extra pay (such are the actual words). Clause 10 provides that in the event of suspension of the performance through contingencies beyond the control of the management, no salary (such is the actual word) shall be payable. Clause 12 provides that the management will pay the artists through Syd Roy the total sum of 76l. per week. Clause 13 says that the artists shall be liable for any accident resulting from their performance. Clause 17 says that the salary payable under the contract shall not be assigned except with the consent of the management. Clause 18 provides that the management may at once end the agreement if the artists or any of them

(a)

break any provision of the agreement,

(b)

shall be intoxicated,

(c)

are wilfully careless or inattentive or use improper language, etc.,

(d)

refuse or neglect to carry out or perform the reasonable instructions and requirements of the management relating to the performance of the artists,

(e)

leave the United Kingdom without the consent of the management.

Such is the agreement which was signed by each member of the band. In my humble opinion it is an agreement which made the band the servants of the defendants. It provides for seven hours' daily service. It uses the word "services." It mentions "salary." It mentions "pay." It uses the word "employ." It provides for a period of employment. It provides that the band shall play at any place in London where the defendants may direct. It provides that their services shall be at the exclusive disposal of the defendants. It gives the defendants the right of immediate dismissal for the breach of any reasonable instructions or requirements. Above all it gives, I think, to the defendants the right of continuous, dominant, and detailed control on every point, including the nature of the music to be played. In my opinion this is not a case of an independent contractor agreement with some features of a service agreement; it is a case rather of a service agreement with several peculiar features appropriate to the employment of a band. I think that just as the defendants would be prima facie liable for the negligence of the band causing physical injury to third persons, so they are prima facie liable for infringement by the band of copyright. The principle of respondeat superior is far-reaching. I may add that the case of a great singer or a great violinist who gives one or more isolated performances may often present contractual arrangements quite different from those now before me.

In view of the ruling I have just given I must consider the next point taken in the able arguments of Mr. Grant, Mr. St. John Field and Mr. Lloyd-Williams for the defendants. They submitted that, even if the band were servants of the defendants, yet that, in view of the prohibition of infringement, both in cl. 4 of the agreement and in the public notice, the defendants could not be fixed with liability. In substance this raises the question whether the principle of Limpus v. London General Omnibus Co. ^[F23] applies in favour of the present plaintiffs. There the defendants' driver, contrary to express instructions not to race with or obstruct other omnibuses, had upset the plaintiff's omnibus by pulling across the road in front of it. It was held that the defendants were liable, for the servant was acting in the course of his employment. I cannot doubt that in the present case the band were acting in the course of their employment and for the defendants' benefit, for they were engaged for the very purpose of playing dance music at the defendants' hall. I am satisfied, moreover, that they did not infringe copyright knowingly or wilfully; as to which see Pollock on Torts, 12th ed., p. 94. The plaintiffs' inspector spoke to Mr. Syd Roy after the two pieces had been performed. This was the conversation:

The inspector said:

"You know that you have played 'J'en ai marre' and 'Mon Homme'?"

Mr. Syd Roy replied

"Yes."

The inspector then said,

"You ought not to have done so, as they belong to the Performing Right Society."

Mr. Roy replied,

"I did not know that,"

and he added:

"I am not quite sure what works belong to the Society, and we are hampered by the defendants not holding a licence."

This is not a case of wilful misconduct by the band for their own purposes, and it seems clear, therefore, that the case of Joseph Rand, Ld. v. Craig, ^[F24] cited by Mr. Grant, has no application here.

Holding, therefore, as I do, that the band were the defendants' servants acting in the course of their employment, and that the defendants' general prohibition of infringement does not absolve them from responsibility, it follows that the plaintiffs must succeed unless the next argument of Mr. Grant for the defendants be a sound one. It is this: he points to the word "authorise" in s. 1; then he points to the wording of s. 2 to the effect that infringement is committed by doing anything the sole right to do which is conferred on the owner of the copyright; then he says that the two sections must be read together; and, therefore, he submits, that a master is not liable for the infringement by his servant unless he, the master, actually authorized the infringement complained of.

With all respect, I cannot accept this argument. I see nothing in s. 1 which cuts down liability under s. 2. It is my own view that the word "authorise" in s. 1 is superfluous, and I agree with the opinion of Scrutton L.J. in Performing Right Society v. Ciryl Theatrical Syndicate ^[F25] and with the view of Mr. Macgillivray at p. 22 of his work, published in 1912, on the Copyright Act, 1911. It is true that in Fenning Film Service v. Wolverhampton, Walsall and District Cinemas ^[F26] a learned judge took the view that the effect of the word "authorise" in s. 1 is to extend the liability imposed by s. 2 so as to make a man liable in tort for having authorized a performance which never in fact took place. I venture to think, however, that it may well be one thing to authorize a performance which actually occurs and where the authorization may therefore make a man a joint tortfeasor, and another thing merely to authorize a performance which never in fact takes place. One curious result of holding that the latter is a tort would be that once the authorization was actually given the person who gave it would apparently remain liable for the tort even though he immediately afterwards cancelled the authorization upon discovering that copyright would be infringed.

It follows from what I have ventured to say that the points raised by the defendants fail. I ought to add that even if the band here had been independent contractors it might be that the defendants would still be liable in spite of the general prohibition I have referred to. It might be argued by the plaintiffs that the defendants did not in fact trouble at all about the music played by the band in the defendants' own hall for the defendants' own purposes. I should so find. The defendants, moreover, undoubtedly left it to the band to select their own music, and they did not in that matter exercise the legal power of control they possessed. The case may, therefore, fall within Monaghan v. Taylor, ^[F27] which the Court of Appeal in Performing Right Society v. Ciryl Theatrical Syndicate ^[F28] treated as an authority applicable to the Copyright Act, 1911. This view would not, I think, be opposed to s. 2, sub-s. 3, of the Act, which appears to me primarily to relate to the case of a man who lets or grants the use of his theatre or hall to a third person so that that third person may give his own performance therein. I decide the present case, however, on other grounds.

I must give judgment for the plaintiffs. I assess the damages at 12l. for the infringement of the two copyright pieces. I have hesitated upon the granting of an injunction, as I recognize that the case is in some ways unusual. But upon the whole, I think that the plaintiffs are entitled to an injunction. My main reasons are these: firstly, because an injunction is a normal remedy for infringement: see s. 6 of the Act; secondly, because by their defence as delivered the defendants not only denied infringement but also denied the plaintiffs' copyright; and, thirdly, because, although the plaintiffs before trial offered to accept an undertaking in respect of the two pieces the defendants refused, in substance, to give it. In granting an injunction I think that I am supported by Savory v. World of Golf ^[F29] and J. T. Smith & Jones v. Service, Reeve & Co. ^[F30] I give judgment accordingly with costs.

Judgment for plaintiffs.

Solicitors for plaintiffs: Syrett & Sons.

Solicitors for defendants: R. C. Bartlett & Co.