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The High Court (Arnold J) today handed down judgment upholding claims for infringement of UK and US copyrights in songs written and/or made famous by The Beatles. The decision considers the application of principles of contractual interpretation and proprietary estoppel in the context of “subject to contract” licensing negotiations. It also illustrates the potential (since Lucasfilms v Ainsworth [2012] 1 AC 208) for questions of foreign copyright law to arise for determination in English infringement actions.

The Claimants were the owner and exclusive licensee of the worldwide copyrights in the relevant Beatles songs. They claimed that the Defendants infringed and threatened to infringe their UK and US copyrights in the songs by producing and otherwise exploiting a documentary entitled "The Beatles: The Lost Concert", which incorporates a live performance by The Beatles, at The Coliseum, Washington DC, in 1964. The claim having been settled against the Second Defendant following its entry into liquidation, the Claimants sought judgment against the First Defendant alone.

Upholding the Claimants' claims, Arnold J rejected the First Defendant's contentions that exploitation had been licensed by contract or estoppel. The Judge also rejected the First Defendant’s remaining contention that exploitation in the US was permissible pursuant to the "fair use" defence under s. 107 of the US Copyright Act. Having conducted a detailed review of the US case law and commentary on the defence, the Judge concluded that it was not made out: the relevant use was not “fair” in the circumstances.

Ian Mill QC and Andrew Scott (instructed by Forbes Anderson Free) appeared for the Claimants. Jane Mulcahy QC also advised the Claimants.

The full judgment can be read here: 

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