30th November 2016

Hamlins successful in High Court claim for injunction and damages against TOWIE nightclub manager

By Martin Ochs

Hamlins, acting for both Phonographic Performance Limited (PPL) and PRS For Music (PRS) obtained an important Judgment in the High Court which reinforces the law relating to copyright infringement.

The claims were brought against several parties who were operating Miya Nightclub in Chelmsford, a celebrity hangout which was used for the filming of The Only Way is Essex. The Defendants had failed to take a licence from either PPL or PRS, but continued, despite warnings from Hamlins, to play and perform PPL’s and PRS’ copyright works at the club.

The trial of the claim, which started on 28th September 2016 centred on one of the defendants, Ms Kerry Ormes. Ms Ormes, admitted that she had been the nightclub’s Designated Premises Supervisor (DPS), the DPS is the key person usually charged with the day-to-day management of premises under the Licensing Act 2003. However, she denied being responsible for any infringement at the club as she claimed she was not the manager or proprietor or had any proprietary interest in the club.

Ms Ormes’ barrister argued that her role in the management of the club was limited and that she did not have the requisite authority to authorise the infringements within the meaning of section 16 of the Copyright Designs and Patents Act 1988. He also argued that Ms Ormes was not present at on the date which the Claimant’s obtained recordings from the premises as evidence of the infringements.

Master Clark, who gave the Judgment, found for PPL and PRS entirely and rejected Ms Ormes’ assertions. Ms Ormes was liable for authorising and procuring acts infringing copyright, namely the playing of sound recordings and musical works at the club without licences from PPL and PRS. In giving her Judgment, Master Clark accepted PPL’s and PRS’ evidence that it would be unusual for a DPS not to be a person who had managerial control of the premises in order to meet the licensing objectives.

Further, the evidence showed that Ms Ormes acted as the manager of the Club, and that her managerial responsibilities would generally include the booking of DJs and promoters to appear at it. Master Clark also rejected outright the argument that it had to be shown that she had selected and authorised specific songs to be played in order to be liable for authorising or procuring copyright infringement. Ms Ormes involvement in booking a performer amounted to authorisation, whatever music the performer selected to play at the premises. Therefore, whether or not she was present on the night evidence of infringement was obtained, was irrelevant.

The Master awarded PPL and PRS an injunction against the Defendants to prevent further infringement by them at any public premises and awarded damages against Ms Ormes personally. The Judgment is an important reminder of the personal liability for copyright infringement which will fall on anyone who operates or manages premises where music (live or recorded) is played without the requisite licences.

The full Judgment can be found here: Phonographic Performance Ltd v CGK Trading Ltd and others [2016] EWHC 2642 (Ch), 25 October 2016 (Bailii).

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