Judge forced to put finger in the air to work out losses arising out of unauthorised publication of Jimi Hendrix concert – Experience Hendrix v Times Newspapers, High Court

Jimi Hendrix – the famous musician – and the other members of The Jimi Hendrix Experience band just wanted to entertain. Little did they know that their last ever UK concert in 1969 would become such a cause for contention. The concert was filmed but the project to reproduce the film was suspended when the singer died the following year. Experience Hendrix was just finalising the film in 2006, when The Times newspaper gave away a free CD covering 10 tracks from that concert. The newspaper thought that it had a valid licence to use and reproduce the material, but a High Court ruling said that it did not and therefore copyright was infringed. This latest case had to decide the level of damages. Experience Hendrix claimed that it had lost an opportunity to obtain a number of revenue streams. It also wanted to be awarded additional punitive damages.

The High Court had real difficulty. It said that that it was impossible to forecast what the box office takings would have been for a film, especially one that had yet to be finished. It was also impossible to test the claimant’s projections of the likely losses. Projecting the numbers of CDs and DVDs, let alone associated sales such as ringtones and radio income, were just a matter of pure guesswork. However, that should not stop Experience Hendrix from being able to claim any losses, as that would have hit the wrong note entirely. The Court therefore had to find some way of quantifying the losses.

Despite all the speculation over figures, two pieces of evidence enabled the High Court to come up with a figure of lost sales of US$5.8m for the 12 month period following 2010. One piece of evidence was a distribution agreement entered into with a company in 2010 and another was from a rival offer made to the claimant for the DVD and soundtrack rights. The High Court just did the best it could based on those two pieces of evidence. Additional damages would not be awarded as a punishment for flagrant infringement, as The Times had made a genuine attempt to have an appropriate licence.

It is doubtful whether this case or its results would be music to anyone’s ears – whether the fighting parties, judge or even the deceased music star.