COPYRIGHT – MUSICAL WORKS – FAILURE TO OBTAIN LICENCES – BREACH OF AGREEMENT – CONTENTION THAT ASSURANCES GAVE RISE TO ESTOPPEL

W, a professional musician sought royalties from A arising from the sale of a record created by W using the “sampling” of a well known track recorded by other artists. A counterclaimed for damages contending that W had breached his contract with A by failing to obtain copyright licences from those artists. W contended that he had acted in reliance on assurances from A that it had been within its rights to issue the track to the public, and therefore the assurances gave rise to a waiver of the strict terms of the agreement. Alternatively, the assurances provided the basis in equity for estopping A from relying on the terms of the agreement.

Held, giving judgment for W, and ordering that A account to W for the royalties to which he was entitled under the contract. The court found that W believed that the licences had already been obtained by A since the assurances given by employees of A were given under the apparent or ostensible authority of A’s manager and in house legal adviser. Therefore obtaining the licences was not his responsibility and it would be inequitable to allow A to rely on the agreement, Brikom Investments Ltd v. Carr [1979] Q.B. 467, [1979] C.L.Y. 1598 applied.

WALMSLEY v. ACID JAZZ RECORDS LTD [2001] E.C.D.R.4, Terence Etherton Q.C., Ch D.

“Current Law” March 2001