Messager v British Broadcasting Company Ltd
[1929] A.C. 151(Judgment by: Lord Hailsham LC (icluding background))
Between: Messager - Appellant
And: British Broadcasting Company Ltd - Respondent
Judges:
Lord Hailsham LCViscount Sumner
Lord Buckmaster
Lord Carson
Lord Warrington of Clyffe
Subject References:
COPYRIGHT
INFRINGEMENT
Opera
Broadcasting
Performing Rights Agreement
Licence or Assignment
Construction
Judgment date: 8 November 1928
Judgment by:
Lord Hailsham LC (icluding background)
The appellant was the composer of the music of a French opera, an English version of which was produced at a London theatre on the terms of an agreement of March 23, 1905. By this agreement, made between the composer (the appellant) and the authors of the opera (thereinafter called "the licensors") of the one part and the proprietor of the theatre (thereinafter called "the licensee") of the other part, after reciting that the licensors had delivered the play to the licensee, with the score of the music, with a view to its production in London and elsewhere "on the terms hereinafter mentioned," the licensors granted the licensee the sole and exclusive right of representing the play in the United Kingdom, America, and the British Colonies and Dominions.
The agreement further provided that the copyright in the music of the play should remain the property of the appellant; that on the failure of the licensee to produce the play in London within a certain time all rights of representation as aforesaid should revert to and become again the absolute property of the licensors; that the licensee should pay to the licensors as royalties certain percentages of the gross profits; that the licensee should keep proper books showing the gross receipts of the theatres at which the play should be represented, and that the licensors should be entitled to inspect the books, so as to enable them to verify the amount of the percentage payable to them.
The respondents, in pursuance of a permission granted to them by a theatrical company, to whom on the death of the licensee the benefit of the agreement had been assigned by his executors, gave a broadcast performance of the opera at their studio in London.
In an action by the appellant against the respondents for infringement of copyright:-
Held, upon the construction of the agreement, that it operated as an absolute assignment of the performing rights of the opera within the prescribed area and was not a mere licence, and that it was not limited to representations on the stage of a theatre; and that the action failed.
Decision of the Court of Appeal [1928] 1 K.B. 660 affirmed.
Appeal from an order of the Court of Appeal [F1] reversing a judgment of McCardie J. [F2]
The appellant was the composer of the music of a French opera "Les Petites Michus," an English version of which was produced at Daly's Theatre by the late George Edwardes on the terms of an agreement dated March 23, 1905, and made between the composer and authors of the opera of the one part and George Edwardes of the other part. The respondents in pursuance of a permission granted to them by a company called George Edwardes (Daly's Theatre), Ld., who had obtained an assignment of the benefit of the agreement from George Edwardes' executors, gave a broadcast performance of the opera at their studio in Savoy Place.
Thereupon the appellant brought an action against the respondents for an injunction to restrain the respondents from transmitting by wireless telephony or otherwise performing in public the music of the opera without the consent of the appellant, and for damages for infringement of copyright.
The question turned upon the construction of the agreement, the terms of which are fully set out in the report of the case before the Court of Appeal and are summarized in the headnote.
McCardie J. held that the agreement conferred a limited licence on George Edwardes and was confined to theatrical representations of the ordinary character at theatres and no other places, and that it ended with the death of George Edwardes in 1915; and he gave judgment for the appellant for 150l. damages.
The Court of Appeal (Scrutton L.J., Atkin L.J., and Eve .J.) held that the agreement was not a mere licence personal to George Edwardes, but was an assignment of the performing rights of the opera within the prescribed area, and that the benefit of the agreement was assignable by George Edwardes' executors; and further, that the right of representation conferred by the agreement was not limited to performances in theatres. They accordingly reversed the judgment of McCardie J. and ordered judgment to be entered for the respondents.
The arguments in support of the appeal sufficiently appear from the judgment of the Lord Chancellor. The respondents' counsel were not called on.
Sir Herbert Cunliffe K.C. and the Hon. S. O. Henn Collins for the appellant.
Sir Duncan Kerly K.C. and Trevor Watson for the respondents.
1928. Nov. 8. Lord Hailsham L.C.-
My Lords, this is an appeal from a decision of the Court of Appeal reversing a judgment given by McCardie J. in favour of the appellant, to whom the learned judge awarded 150l. damages for breach of copyright.
My Lords, in the view that I take of the case it turns within a very narrow compass, and it is only necessary to state quite shortly one or two dates and facts in order to indicate the point which arises. It appears that the appellant, M. Messager, was the composer of a play known as "Les Petites Michus"; by an agreement of March 23, 1905, arrangements were made between M. Messager, the composer, and M. Vanloo and M. Duval, the authors of the play, and Mr. George Edwardes, of Daly's Theatre in London, whereby Mr. George Edwardes had certain rights conferred upon him with regard to the production of the play in the British Dominions and in the United States of America. I will revert to the exact terms of that agreement in a few moments. In the year 1915 Mr. George Edwardes died, and on May 6, 1920, his executors assigned to a company known as George Edwardes (Daly's Theatre), Ld., as far as they lawfully could, all the rights passing to them under the agreement of 1905. On October 19, 1926, George Edwardes (Daly's Theatre), Ld., licensed the respondents, in consideration of a sum of 60l., to perform the play at their broadcasting studio and thereby to allow all their subscribers and all those who used their wireless receivers to hear the performance. On November 10, 1926, that performance took place. Thereupon M. Messager complained that the respondents were acting without his licence and were therefore infringing his copyright, and, upon the respondents rejecting that position, this litigation ensued.
My Lords, from that recital of the facts I think it follows that the whole question turns upon the effect of the agreement of March 23, 1905. That document is made between M. Messager, M. Vanloo, and M. Duval, who are collectively described as "the licensors," of the one part, and Mr. George Edwardes, who is in the agreement called "the licensee," of the other part. It recites that
"the licensors have delivered the play to the licensee together with the full score of the music thereof with a view to its being produced by the licensee at Daly's Theatre and elsewhere on the terms hereinafter mentioned."
Then by clause 1 the agreement provides:
"The licensors hereby grant the licensee the sole and exclusive right of representing or performing the play in the United Kingdom Great Britain and Ireland America and the British Colonies and Dominions."
I think counsel for the appellant conceded that the language of that clause taken by itself would be wide enough to confer upon Mr. George Edwardes the absolute performing rights of the play within the area mentioned in the clause, but it was contended that that clause, when read with the recital, to which I have called attention, and with the subsequent clauses in the agreement, must be construed as merely operating either as a licence or, at the most, as the assignment of a right to perform in theatres, or else, as I think Mr. Henn Collins suggested, in towns. My Lords, I have looked at the subsequent clauses of the agreement, but I am quite unable to accept that view. Clause 2 provides that
"The copyright in the music of the play shall remain the property of the said Andre Messager and he shall be at liberty to use the English lyrics for sale with the music."
Clause 3 provides:
"The play shall be adapted for the English stage at the expense of the licensee."
Then by clause 4 it is provided - and this is the clause particularly relied on by the appellant -
"The licensee shall in consideration of the rights hereby granted pay to the licensors the following royalties or fees:
- (a)
- Four per cent. of the gross receipts up to Eight hundred pounds per week and six per cent. of the gross receipts over that amount for London and New York and half of these amounts for all other towns with the exception of No. 3 or fit-up towns the fees of which are to be one-fourth of London and New York such fees in the case of the United Kingdom Great Britain and Ireland to be paid weekly and in respect of America and the British Colonies and Dominions monthly."
By clause 5 it is stipulated:
"If the play be not produced in London by the said George Edwardes within three months from this date all rights of representation as aforesaid shall revert to and become again the absolute property of the licensors."
Clauses 6 and 7 are not relied on as material. Clause 8 stipulates that:
"Proper books showing the gross receipts of the Theatre or Theatres at which the said play shall be represented shall be kept by the licensee and the licensors or their agent duly authorised in writing shall be entitled at all reasonable times to inspect the said books and all vouchers accounts and other documents relating to the said receipts so as to enable the licensors to verify the amount of percentage payable to them as aforesaid."
Sir Herbert Cunliffe, for the appellant, contended that the recital showed that the play had been delivered "with a view to its being produced by the licensee at Daly's Theatre and elsewhere on the terms hereinafter mentioned," that those terms were shown by clause 4 to be a percentage of the gross receipts, and clause 8 showed that the gross receipts were limited to gross receipts at theatres within the named area.
My Lords, I am unable to accept that construction of the agreement. In my view clause 8 is a stipulation that books, in case of representations at a theatre, shall be kept and be open for inspection, but it cannot be read as limiting the right of the licensors to receive 4 per cent. of the gross receipts within the meaning of clause 4. But even if I were wrong on this construction and if the payments to the licensors were limited to 4 per cent. of the gross receipts of the performances at theatres, I should still be unable to treat that expression as limiting or cutting down the plain grant which is contained in clause 1. That, in my view, plainly operates as an assignment to Mr. George Edwardes of the sole and exclusive right of representation within the area named in the clause, and I think that that view of the clause is strengthened, not only by the expression in clause 2, which stipulates that the copyright in the music shall remain the property of M. Messager, but also by the language of clause 5, which provides that in the event of non-production within three months "all rights of representation as aforesaid shall revert to and become again the absolute property of the licensors." That seems to me inept language in which to describe the mere cessation of a licence, and is much more apt to describe the reversion to the licensors of rights which had been assigned by clause 1.
My Lords, if I am right upon that question of construction, then I think the other points raised by the appellant do not really arise. It was suggested that the licence or grant was one which was personal to Mr. George Edwardes and therefore not assignable by him; but if this be an assignment out and out to Mr. George Edwardes, I do not think it was contended that Mr. George Edwardes in turn could not assign those rights to whomsoever he chose. At any rate, if such a contention is put forward, I find nothing to warrant it in the clauses of the agreement.
A subsidiary point was mentioned, but not argued at any length at your Lordships' Bar, to the effect that since the Broadcasting Corporation, when they performed the play, became audible to people in other parts of the world outside those named in clause 1, therefore there was an infringement of M. Messager's copyright in those other districts. With regard to that contention it is sufficient to say, as was said in the Court of Appeal, that no such case is made on the pleadings, and therefore it is not necessary to consider it in your Lordships' House.
For these reasons, which I think are the same as those which are set out in the judgment of the Court of Appeal, in my view this appeal should be dismissed, and I move your Lordships accordingly.