The Intellectual Property Enterprise Court (Nugee J) has handed down judgment in a claim for damages for infringement of the copyright in two songs by Spandau Ballet. The judgment clarifies two important principles which will be relevant to similar damages claims.
The defendant had used two of Spandau Ballet’s most iconic songs, “Gold” and “True”, in an advertisement for a “Back-to-the-80s” themed cruise. The key issues for the court were: the appropriate notional licence fee; and whether the claimant was entitled to additional damages under s. 97(2) of the Copyright, Designs and Patents Act 1988. The claimant contended that the term of the notional licence should be the term that the parties would have agreed in the hypothetical negotiation (in this case, roughly one year). It also claimed additional damages on the basis that the defendant’s agent had been reckless as to obtaining the necessary clearances. The defendant responded that: the term of the notional licence should correspond to the period of the infringement (in this case, only 5 days); and that the knowledge of an agent could not be imputed to the principal for the purposes of a claim to additional damages.
On the first issue, Nugee J, following Eaton Mansions (Westminster) Ltd v Stringer Compania de Inversion SA  EWCA Civ 1308 (a trespass case), accepted the defendant’s position that the term of the notional licence fee should reflect the period of the infringement. However, despite the proper term of the licence being only 5 days, he held that the price payable for such a licence would be 25% of the price payable for a year-long licence, there being an irreducible premium associated with use of the songs. He further held that the knowledge of an agent could be imputed to a principal according to ordinary principles of the law of agency and so upheld the claim for additional damages.
The judgment can be found here.
Tom Richards and Tom Coates acted for the claimant, Reformation.