The UK Patents County Court recently released the decision of Henderson v All Around the World; a case involving a copyright claim by a young artist whose song became an unexpected hit. Jodie Henderson (aka Jodie Aysha) was in her mid-teens when she wrote a song called “Heartbroken” which was recorded and remixed by Tafazwa Tawonezvi (aka T2) in 2005.
T2, an up-and-coming DJ in the nightclub industry, came back to the recording in 2007 and altered it to be released as a single in the emerging “Bassline” genre. Bassline is so named because of the bass prominent rhythm pattern featured in a song. The altering process included adding a beat track which fit within the Bassline genre and editing Henderson’s vocals in a way which made them better suited to the genre. The single was released in 2007 and came to the attention of record company All Around the World in the summer of 2007. From there, the single quickly became the most popular song in the Bassline genre and enjoyed significant success.
The lawsuit itself arose due to the ongoing relationships between Henderson, Tawonezvi, Tawonezvi’s managers 2NV and All Around the World primarily because Henderson had yet to be paid. The action was for breach of Henderson’s performer’s rights under Part II Chapter I of the Copyright Designs and Patents Act 1988 for the initial release of the single which Henderson alleged not to have consented to. The Honourable Judge Birss found that although Henderson had consented to being recorded, she had never consented for the recording to be released as a single. Although it was clear from the facts that Henderson never explicitly consented to the release, the judge also made a finding that Henderson had never impliedly consented to the release. Not finding an implied consent was, upon reading the facts, surprising in the legal context.
Without delving into the numerous disputed facts in the case, it is clear that at various times during the success of the single Henderson was involved in the creation of that success. She attended events promoting the single and is included in the music video. What the judge focused on primarily, although Henderson appeared to support the single publicly, was Henerson’s negative interactions with the other interested parties in Heartbroken. The Judge found that because Henderson protested various elements of the single’s success she had never truly given an implied consent to the single’s release.
For example, when initially released, Tawonezvi only credited himself as composer, having the song appear as “T2 – Heartbroken”. Upon protest from Henderson, the title was renamed to include her as a featured artist of the track although Henderson felt that she deserved the majority of credit for the song’s creation. Later, in the filming of the video for the single, Henderson claimed that she agreed to take a less prominent role because All Around the World threatened to exclude her altogether from the video if she did not accept the lesser role.
The best rationality for the result in this case, despite all the actions of Henderson, is the quasi-legal compassionate grounds which the judge includes in the reasons for judgment. The judge characterizes those individuals at the record company as “slick” and notes that their actions suggest that they were “stringing [Henderson] along”. Without being present at the trial I can only guess at the extent of the testimony which caused the judge to make these character judgments, but by having made them, the judge provides grounds for having sided with Henderson. The fact that Henderson was young at the time all these events transpired, naturally gives compassionate grounds to offer her more than the usual protections of the law.
From a legal stand-point, I think that generally when an artist endorses a single they have implied a consent to the single being released. The fact that the artist may have been unhappy about some element of the deal is probably insufficient to invalidate that consent. Having said that, given the specific facts in this case, I think that the judge came to the correct decision. Since the finding in the case was so fact-specific and based at least somewhat on the age of the artist, I doubt whether this result could be relied upon in a general way by subsequent courts.
Adam Stevenson is a JD Candidate of Western University, faculty of law
