The Intellectual Property Enterprise Court has assessed damages for copyright infringement by making unauthorised vinyl copies of Eminem's first album, Infinite.1
On the facts, the IPEC rejected damages claims based on:
(a) loss of opportunity to license a third party to coincide with the 20th anniversary of Infinite; and/or
(b) losses arising from the licence that the claimant would have offered the defendant for releasing the album.
Instead, the IPEC assessed damages on the basis of a reasonable royalty for the defendant's actual sales of the record, assuming a negotiation between a willing licensor and willing licensee. That resulted in a putative fee of £2.50 per unit, plus interest.
Comment
While this case does not establish any new point of law, it provides a helpful illustration of the law that the court is likely to apply when deciding whether there has been a loss of opportunity to grant a licence to a third party, and what might be considered to be a reasonable royalty, based on the notion of a willing licensor/licensee negotiation. It also confirms several factors that may (or may not) be useful when establishing whether a contract is a relevant comparable for the purposes of assessing the hypothetical bargain between parties to a dispute in this context.
Finally, it serves as a reminder that the courts tend to be conservative in their approach to awarding damages. The sum awarded in this case was a tiny fraction of the £288,209 claimed by the claimant.
To read the full article, click here. Written for Entertainment Law Review.
Footnote
1. FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd [2021] EWHC 932 (IPEC) (20 April 2021).
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