The Court of Appeal (Lady Justice Arden, Lords Justices Kitchin and Lloyd Jones) has confirmed that a definition’s express wording cannot be displaced by language elsewhere in the contract. Although this the decision turned on its facts, it applied the principles of contractual interpretation in the context of a fairly complex music copyright assignment.The moral of the story would appear to be that, all things being equal, the words with which the parties to a copyright-related agreements express themselves are more likely to be given their normal and natural meaning than to be reframed, recontextualised and then closely reinterpreted so as to mean something quite different.
This dispute concerns ownership of copyrights in 13 songs written by reggae musician Bob Marley, including perhaps his most famous (and most covered?) song "No Woman, No Cry". Present ownership depended upon a purported transfer under a 1992 agreement between Island Logic Limited (‘ILL’), part of the Island group of companies founded by Chris Blackwell, "the single person most responsible for turning the world on to reggae music", and Cayman Music Inc (‘CMI’). This issue turned on whether the songs were included in the 1992 Agreement, despite Marley’s deliberate misattribution of the respective copyrights (the “Misattribution Ploy”).
Another case of art imitating nature?*
It appears that, like a number of reggae artists at the time, Bob Marley may not have been fairly compensated by certain parties for his work, which included (he contended) not receiving royalties under two publishing agreements. As a result, in order to gain control of the copyrights and/or revenue streams, Marley deliberately misattributed songs to various associates. Reportedly, the songwriting credits for “No Woman, No Cry” for example, were given to a friend to use the subsequent royalties to run a soup kitchen in Trenchtown, Jamaica, where Marley grew up.
After Marley died intestate in 1981, Mr Blackwell and Island (working with his estate) sought to safeguard his legacy by acquiring the rights in his works. Accordingly, Island entered into the 1992 Agreement, which Mr Blackwell believed would give Island virtually complete control over Marley's creative output.
As noted by the trial judge (Richard Meade QC, sitting as a deputy judge at  EWHC 1690 (Ch), the March 1992 Agreement is lengthy and was carefully negotiated with expert input; however, “it is, in some respects, rather scrappy”, and nowhere does it refer to the 13 compositions in question.
The appellants had argued that CMI and Island had agreed either not to address the songs that were the subject of the Misattribution Ploy, or to treat them as not belonging to CMI; but this was simply nowhere to be found in the language of the Agreement. The deputy judge said that, for the parties to leave out the songs without saying so, and so maximise future uncertainty, seemed “little short of ridiculous”.
The Court of Appeal affirmed that interpretation was a question of law: to determine what the parties meant by the language in the Agreement. This involved ascertaining the meaning in the context of the factual matrix, i.e. what would the language would convey to a reasonable person having all the background knowledge reasonably available to the parties at the time of the contract. There was no challenge to the judge's findings as to the factual matrix itself.
The Agreement defined the "Acquired Assets" as a series of music publishing interests including "Compositions", in turn defined under the heading ““Composition” and “Catalogue”” as:
...all presently-existing musical compositions, or portions thereof… written recorded by Robert N. Marley, Winston Peter McIntosh and/or Neville Livingstone …under their own names or under any pseudonyms, individually or as part of any collaboration between or among any of them or others…The appellants accepted that the language provided a “sweep up”, but contended this only covered "lost" songs, and not those the subject of the Misattribution Ploy. But the Court of Appeal affirmed that there was nothing in the language to support such approach. The preamble to the definitions section made clear that certain terms would have the meanings given to them by the clause, and the definition clearly signified that musical compositions written and recorded by Bob Marley were "Compositions" for the purposes of the Agreement.
Attempts to find a definition of "Compositions" elsewhere in the Agreement failed:
* Preliminary statement
A ‘Preliminary Statement’ referred to the sale of "certain" publishing interests; but this meant the extent of the assets being sold was to be determined by reference to the terms of the Agreement (rather than otherwise narrowing the scope of the included assets).
A warranty provided that Schedule 2 contained "a complete and accurate list of all of the Compositions"; another provided that the Seller was to deliver originals of all songwriter agreements pertaining to the Compositions; but importantly, the warranties did not purport to be or provide definitions.
* List of works
The definition of “Compositions” specifically referred to Schedule 2 as providing a non-exhaustive list of the Compositions (by the words “included, but not by way of limitation, the catalogue listed on Schedule 2 attached”).
* Further documents
A further schedule referred to financial statements that CMI had presented to ILL which revenues earned in respect of the Acquired Assets; but this did not purport to limit the scope of the Compositions in any way.
The Court of Appeal upheld the decision of the High Court, that the songs fell within the scope of the definition of "Compositions". The other provisions of the Agreement could not displace the express wording of that definition, nor the fact that the 1992 Agreement did not expressly refer to those songs. As a result, the rights in the songs were transferred under the terms of the 1992 Agreement.
The meaning of words here
The meaning(s) of Bob Marley's songs here
* Illustration from The Kitten Covers.