Mr Justice Patten

INTRODUCTION

1. This is an action for infringement of the copyright in two original artistic works: the first is a photograph of the singer Elvis Costello, which was taken by the Claimant in the summer of 1977; the second is a silk-screen print of the singer based on the same photograph, which was designed and produced by the late Cohn Fulcher, a professional graphic artist, who was known to everyone as Barney Bubbles. I shall refer to him by the same name. The screen-print was created in October of the same year. The Claimant, Mr Gabrin, was at the time a professional photographer. He was asked to take a series of photographs of a number of singers and musicians, including Mr Costello, who were going to appear in a live tour which was being arranged by a company called Elcotgrange Limited, which traded under the name of Stiff Records. At that time Stiff Records was a very small record label with limited financial resources, and none of its artists was particularly well-known. In July 1977 it had released one album by Elvis Costello entitled “My Aim is True” and the tour to promote Mr Costello and the other artists was due to start on 3rd October 1977. At that time Stiff Records had two directors, Mr Jake Riviera and Mr David Robinson. It had to keep to an extremely tight budget, and the evidence of both Mr Riviera and Mr Robinson was that when photographs needed to be taken for publicity purposes or for use on a record sleeve, they would try to keep costs to a minimum. It is, I think, clear from the evidence of all the witnesses that, for any photo shoot, Stiff Records was prepared to pay a basic fee of up to £50 to the photographer, which was intended to cover his expenses including the cost of the film and its development, and to pay for the photographer’s time. If one of the photographs was chosen for a record cover, a fee of £100 would be paid for a single sleeve and £250 for an album sleeve. The Claimant, Mr Riviera and Mr Robinson all said that the record sleeve payments would carry with them the copyright in the photograph. It was essential that Stiff Records should own all the rights to the sleeves. The controversial area concerns photographs which were taken as part of a shoot, but were not acquired for purposes of use on a record sleeve at the relevant time. Mr Gabrin’s case is that, in relation to photographs which were intended to be used solely for publicity, the agreement between him and Stiff Records was that copyright would belong to Mr Gabrin and, in return for the £50 fee, Stiff Records would have a licence to use such of the photographs from the session as it chose for the purposes of publicising the tour. Subject to an agreement that Mr Gabrin would not make use of photographs identified by Stiff Records as unflattering or inappropriate, the agreement left him free to exploit the photographs taken at the session for all other purposes. This included supplying such photographs to third parties.

2. This case is governed by the Copyright Act 1956. The Claimant is the author of the photograph which he took, for purposes of s.4(1) of the Act, provided he was the owner of the film at the time when the photograph was taken: see the definition of “photograph” in s.48(1) of the Act. In order to dispose of this point, I can say at once that I am satisfied, on Mr Gabrin’s evidence, that whatever else they may have been, the arrangements with Stiff Records whereby he was reimbursed his expenses of the shoot did not have the effect of making Stiff Records the owner of the film at the time when the photograph was taken. The payment was in reality a payment for the use of the photographer’s time, calculated to include the reimbursement of his expenses. Mr Gabrin is therefore the owner of the copyright in the photograph, unless the provisions of s.4(3) apply. Section 4(3) provides that:

“Subject to the last preceding subsection, where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or money’s worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.”

These provisions are themselves subject to s.4(5), which states that:

“Each of the last preceding subsections shall have effect subject, in any particular case, to any agreement excluding the operation thereof in that case.”

3. In August 1999 the First Defendant, Universal Music Operations Limited (“Universal”) obtained a licence to exploit some of Elvis Costello’s back catalogue by the release of an album entitled “The Very Best of Elvis Costello”. The booklet accompanying this CD, the front page of which is of course visible to the purchaser, contains the image of the head and shoulders of the artist taken from the screen-print. The CD was released early in August 1999. The screen-print, and therefore the photograph on which it was based, were also reproduced on a large billboard advertising the CD, which was situated outside Universal’s headquarters near the Hammersmith Flyover. The CD booklet contains the following credits: “Front sleeve design is dedicated to Barney Bubbles. Original front cover photograph: Chris Gabrin”. Universal’s evidence (which is unchallenged on this point) is that at a meeting with Elvis Costello’s management company in 1999 to discuss the CD release, Mr Roche, one of its product managers who was responsible for the design of the booklet cover, saw a copy of the screen-print hanging on the wall. He was told by Mr Costello’s managers to use it.

4. On 13th August 1999 the Claimant’s solicitors wrote to Universal complaining about these alleged acts of infringement in relation to Mr Gabrin’s ownership of the copyright in the photograph. The letter makes no reference to the screen-print as such, nor does it assert any copyright in that work. Later, on 16th September 1999, a further letter was written to Universal enclosing draft Particulars of Claim, which again asserted copyright only in respect of the photograph. Subsequently, however, on 24th September 1999, the same firm of solicitors wrote to Universal on behalf of Mrs Jill Jewiss, Mr Bubbles’s sister, alleging infringement of copyright in respect of the screen-print. Again there is no suggestion in that letter of joint ownership of the screen-print copyright with Mr Gabrin. Mrs Jewiss claims to be the administrator and sole beneficiary of Mr Bubbles’s estate under his intestacy. On 15th October 2001, prior to the commencement of these proceedings, she entered into an agreement with Mr Gabrin under which, in consideration of the sum of £1, she assigned to herself and Mr Gabrin as trustees for themselves as tenants in common in equal shares absolutely, all her rights and interests in respect of the screen-print, including the copyright in that work. Although joined as a Defendant in order to be bound by any orders which the Court may make in these proceedings, she has taken no part in the action beyond providing a witness statement. The agreement of 15th October proceeds on the assumption (which is evident from the recitals) that Mr Bubbles was the originator of the artistic work comprised in the screen-print, but that he and Mr Gabrin collaborated together on it and agreed that they would jointly own the copyright. Mr Gabrin’s pleaded case is that this agreement was reached between himself and Mr Bubbles not long after the photograph was taken and prior to the screen-print being made. He asserts joint ownership of the copyright in the screen-print by virtue of this agreement, and the 15th October agreement with Mrs Jewiss was effective, if that is right, merely to vest legal title in the copyright in the two of them.

5. The First Defendants were not, of course, parties to any of these agreements and have no personal knowledge of the events of 1977. But they put the Claimant and Mrs Jewiss to proof of their title in the copyright of the screen-print, and assert in the case of both that and the photograph that the works were commissioned for payment, with the result that the copyright in both works has at all material times vested in Stiff Records. They do not allege that they are the copyright owners, but in order to defeat the claim it is unnecessary for them to do so. The claim will fail unless Mr Gabrin can establish that at the time of the alleged infringements he was the copyright owner in respect of one or both works. In the alternative, Universal pleads that the Claimant has acquiesced over a long period in the continued use of both the screen-print and the photograph on various recordings and promotional material, with the result that he is now estopped from asserting his rights against Universal.

THE 1977 PHOTOGRAPH

6. Mr Gabrin’s evidence is that he became a professional photographer in about 1969. Earlier he had worked as a school photographer and an assistant in a photographic shop, while waiting to go to art college. He studied photography at Bournemouth and Poole College of Art between 1967 and 1969. Whilst at college he was introduced to Mr John Garrett, whom he describes as one of the top advertising photographers at the time, and he went to work for him during his summer vacation. At the end of his second year at college he was offered full-time employment with Mr Garrett and accepted his offer. He worked for John Garrett for almost three years, from 1969 until 1971. During that time he gained experience in photographing a wide range of subject-matter, and it was only when Mr Garrett moved into photo-journalism, towards the end of 1970, that he decided to leave. He then began working on his own and later in 1971 met up with an old college friend, Mr Jeff Powell, who was looking for a photographer to assist him in the design of an LP cover. The client was Mr Robinson, who was later to be one of the directors of Stiff Records. At that time he was managing two bands, Help Yourself and Brinsley Schwarz, and Mr Gabrin took photographs for use on record covers, advertisements and other publicity material.

7. It was in this way that his career moved from advertising work into the music business, but his photography was not yet able to provide him with a living. He did not have his own studio and took his photographs at whatever locations were made available to him. Mr Robinson put him on a retainer of £5 per week so that he would give priority to his work, but his income depended on being paid for pictures used by record companies on record sleeves or in advertisements. At about the same time he met Jake Riviera. Mr Riviera was managing bands called Chilli Willi and the Red Hot Peppers, which Mr Gabrin used to go to see. He also became friendly with Ian Dury and his band, Kilburn and the High Roads. Part of the attraction to him in working in the music business was his enthusiasm for the music itself. To supplement his income he taught photography to art students at East Ham College.

8. In about 1976 Mr Gabrin established his own studio in North London, which obviously enabled him to undertake a wider range of work and to put to use the knowledge which he had gained whilst working with Mr Garrett. It was in July 1976 that Elcotgrange Limited (Stiff Records) was incorporated, and the company’s first release was a single by Nick Lowe called “Heart of the City”. Mr Gabrin photographed the artist for use in advertisements and other publicity material. Mr Gabrin confirms the evidence also given by Mr Riviera and Mr Robinson, that in its early days Stiff Records operated on a shoestring. It had no spare cash and it depended on friends of Mr Robinson and Mr Riviera being prepared to put up money by way of investment. Mr Robinson said that in 1977 the company ran up debts of £150,000. The Stiff tour was very expensive, with high advertising costs. Certain creditors (most notably record suppliers) had to be paid up front in order to obtain discs for sale, but whenever possible the company would try to obtain what it needed and to pay for it later. Photographers fell into this category. The £50 fee would be promised, and for this Stiff Records would get the pictures taken at little or no cost. Only if one of the photographs was selected for a record sleeve would any significant outlay be involved. Mr Robinson admitted that to some extent Mr Gabrin and perhaps other photographers were exploited in this way, but the company’s cash-flow position left it with little choice.

9. Some years earlier, Mr Gabrin had first met Barney Bubbles. Mr Bubbles worked on a freelance basis for a number of bands and record companies and was, by common consent, extremely talented. In about 1977 he began to do work for Stiff Records. He was given the title of Artistic Director and worked from a drawing board in Stiff Records’ offices. However, as I have already indicated, he remained throughout this period a free agent and continued to have a number of other clients. The Stiff offices were described by Mr Gabrin as very cramped and hectic, but he rejected the suggestion that they were, to use Mr Cullen’s word, anarchic. The operation, he said, was very efficient. Mr Riviera was the creative dynamo in the company and came up with a lot of the ideas. The company was small and run on a relatively informal basis. Its real problem was its lack of money. It seems to have induced people like Mr Gabrin and Mr Bubbles to carry out work for it, largely on the basis that it was an interesting client to work for, with a number of talented, if as yet unknown, singers and musicians. But they were clearly encouraged to believe, not without some justification, that the company and those contracted to it had good future prospects, and that Mr Gabrin would in due course profit from that.

10. It is against this background and in these circumstances that the photograph which is the subject-matter of these proceedings came to be taken. The Elvis Costello album “My Aim is True”, which had been released in July 1977, had an album cover with photographs provided by Mr Keith Morris. When some publicity photographs were needed for the five Stiff artists who would be touring the UK that autumn, Mr Gabrin was approached. The artists were Nick Lowe, Ian Dury, Wreckless Eric, Larry Wallis and Elvis Costello. The five artists came to Mr Gabrin’s studio in Camden and the shoot lasted for an hour or two. He had worked with all of the artists before and was on friendly terms with Mr Lowe and Mr Dury. The atmosphere was, he said, relaxed, but there was an underlying competitiveness between the five acts which he says enhanced the quality of the photos. As was the norm, most of the photographs were shot in black and white. Virtually no colour photographs were used for publicity shots at that time. But on this occasion about two reels of colour film were also used. Mr Riviera said that this was at his request, so that some colour photographs would be available for possible use on a single or LP cover. He said that he also anticipated the possibility of getting a photograph of the artists on the front page of Time Out (which in fact occurred) and needed a colour photograph for that purpose as well.

11. Mr Gabrin says that he was told, and organised the photo-shoot on the basis that, the photographs produced would be used for publicity purposes. Mr Riviera accepts that that was the primary purpose of the session, but I am satisfied that colour shots were included in anticipation of their use both in connection with possible album covers and also with the Time Out feature. There was no written agreement to cover the shoot and the photographs, nor in fact was any specific oral agreement made at the relevant time. Mr Gabrin said that he worked on the basis of arrangements which had been agreed with Stiff Records earlier in 1977, when he first carried out work for them. After that it was accepted on both sides that the same terms would apply. The arrangements as described by Mr Gabrin were that he would undertake the shoot on the basis that he would be paid a sum at least equivalent to his expenses. As already indicated, this would cover the costs of his film and other materials and the development costs. He would be reimbursed these expenses on the basis of receipts. If the shots were to be used for publicity purposes, he could be paid a further fee of about £50, for which Stiff Records would be entitled to use the photographs in their press and publicity material, but would not have assigned to them the copyright. This would be retained by Mr Gabrin, and a further reproduction fee would be payable by publications such as Melody Maker, if they used one of his photographs as part of an article. Any prints selected by Stiff Records and sent to the press would have Mr Gabrin’s name stamped on the back. He would be paid by the various publications according to the space which the photograph occupied. If, however, the photographs shot were to be used on record sleeves, then Mr Gabrin would charge £100 for a photograph for a single sleeve and £250 for an album sleeve. He says in his witness statement, and confirmed in his oral evidence, that copyright in those photographs would pass to the record company.

12. Mr Gabrin was asked about his understanding of the copyright position back in 1977. He said that he assumed that copyright in the photographs belonged to him, unless he had been commissioned to take the photo by the record company. He said that in the case of photographs taken for an advertising agency, there was usually an express agreement under which copyright passed to the client. But in other circumstances his understanding was that the photographer retained the rights. For this reason he did not consider at the time that it was in fact necessary to have any express agreement in order to retain the copyright. He was adamant that the 1977 photo-shoot was billed as a press or publicity photo session. He was not, he said, commissioned to take the pictures on the basis that a payment would be forthcoming regardless of the results. On the contrary, he took the risk. Although he would be reimbursed his expenses, he would not be paid a fee if Stiff Records did not wish to use any of the photographs he had taken. Following the shoot the photographs were developed and delivered to Stiff Records the next day. Eleven rolls of black-and-white film were used, together with the one or two colour rolls. As is customary, the black-and-white photographs were provided by way of contact sheets, each of which has a number of small-sized positive frames (not negatives) enabling the client to see what the developed shots look like. The colour films were transparencies and they were provided to Stiff in unmounted strips. Mr Gabrin differs from Mr Riviera in his evidence about these colour transparencies. His recollection is that he took the colour photographs in case they were needed and not because he had been asked to do so. He is unsure, but he thinks that they may have stayed with Stiff Records and he no longer has them. Although not much may turn on it, I prefer the evidence of Mr Riviera on this. It seems to me that, bearing in mind the economies in force at the time, it is more likely than not that Mr Gabrin would not have carried out any colour photography, for which he might not be reimbursed, without first having been asked to do so by Mr Riviera.

13. The other matter on which Mr Gabrin and Mr Riviera were not entirely ad idem was what was meant by the use of photographs for publicity purposes. Mr Gabrin’s evidence and apparent understanding is that this was limited to the use of photographs in articles in the music press. The £50 fee did not carry with it a permission to use the photographs for wider forms of advertising, but he said that he had in fact no objection to the pictures being used in advertisements for the tour, and he was shown a number of such advertisements listing the tour dates and venues, in which his photographs from this shoot appeared. Mr Gabrin said that he raised no objection to this, not least because he was concerned to maintain good relations with those at Stiff Records. His attitude might have been different, he said, had he been shown a full-page feature in a national newspaper using one of his photographs. Mr Riviera, however, drew no distinction between the use of publicity photographs in the music press and their use in advertising and other promotional material. He considered that on payment of the £50 fee he was entitled to use publicity photographs in (for example) advertisements for the tour, and this difference in understanding I think explains why Mr Gabrin was not always consulted about the use of his work for this purpose.

14. Mr Gabrin says that the photograph with which this action is concerned was not one of those chosen by Stiff Records for use as part of the promotional publicity for the tour, and I accept that. Mr Riviera and Mr Robinson said the same. He is also positive that the photograph was not selected for use on a record sleeve and paid for on that basis. There is no evidence to the contrary, and I accept that also. His case, however, that he retained the copyright in the photograph has been challenged by Universal on the basis of a number of specific occasions when either the photograph, the screen-print or other photographs taken at the same shoot have been used to promote concerts or sales of Elvis Costello’s records without the apparent consent of the Claimant. These instances are relied upon to support the alternative Defence of acquiescence and estoppel, but they are also relevant to a consideration of Mr Gabrin’s evidence that from 1977 onwards he regarded the copyright in the photograph, as well as the screen-print, as belonging to him. The various instances referred to are particularised in paragraph 10(c) of the Defence and in a bundle of material produced for the trial. They can be summarised as follows:

i) In 1977 a colour photograph of the artist taken by Mr Gabrin was used on the picture bag for Elvis Costello’s single, “Watching the Detectives”, which was released by Stiff Records. Both Mr Gabrin and Mr Riviera say that Stiff Records purchased the particular transparency used for the picture bag, and I have no reason to disbelieve this evidence. There is also a possibility, raised during the evidence, that the photograph may not have been taken on the same occasion, in which case its relevance becomes even more marginal;

ii) In 1977 or 1978 two colour photographs taken at the shoot were used for the cover of a record of two live performances of Elvis Costello and other artists, called “Stiff’s Live Stiffs”. The Claimant says that he was paid the £250 for these photographs, and again I accept this;

iii) The next item put to Mr Gabrin was a two-page advertisement for the Stiff tour, which included photographs of each of the artists taken from the August shoot. Mr Gabrin was doubtful whether the two pages were in fact from a single advertisement, but the evidence of Mr Robinson showed him to be wrong about this. However, in relation to the page featuring the photographs with the tour dates beneath, Mr Gabrin’s evidence was that he was consulted about it and allowed this. Although not technically publicity within his definition of that term, this was an advertisement for the tour which he was happy to allow his photographs to be used for. I accept that evidence. This is, however, one of the examples of Mr Riviera regarding himself as free to use the photographs to advertise and promote the tour;

iv) In 1980 an album of music from the Stiff tour was released on the Music for Pleasure label by EMI. The sleeve featured the same group photograph taken by Mr Gabrin, but he says that he was not aware of this release at the time and has never seen it. I really have no evidence as to how the colour photograph came to be used on the record sleeve. It is a reasonable inference that it was supplied by someone at Stiff Records, but that does not take the matter very much further without knowing who that person was;

v) In October and November 1977 Stiff Records used photographs from the shoot to advertise recordings by Elvis Costello and Nick Lowe. Mr Gabrin said that he thinks he got paid for this. These items therefore take the matter no further, other than to confirm that Stiff still regarded itself as able to use the publicity shots as advertising material;

vi) On 1st October 1977 Mr Riviera, on behalf of Elvis Costello Productions Limited, licensed CBS to manufacture and sell recordings n the USA and Canada. The agreement included a warranty by Elvis Costello Productions in clause 13 that all artistic materials furnished and used in connection with any of the recordings would not infringe the rights of any other person. Under this arrangement Mr Riviera supplied CBS with a copy of the 1977 photograph, which was used by CBS on posters and advertisements to promote the records it released in North America. Mr Gabrin did not see these and was not consulted, but the use of the photograph in this way is further confirmation that Mr Riviera certainly regarded himself as able to authorise its use on publicity material without further permission from Mr Gabrin. That, however, would have been the position, whether he (through Stiff Records) had acquired the copyright or had merely a licence to use, and authorise the use of, the photograph for promotional purposes. It does not of itself point only to a belief on the part of Mr Riviera that he had the copyright.

15. The other two items of significance are those pleaded in paragraph 10(c)(ii) and (iii) of the Defence The first of these items is the use of a colour-treated version of the photograph on the box-cover of a set of Elvis Costello recordings entitled “Two and a Half Years” and in the booklet accompanying the boxed-set, which was released by Demon Records Limited in 1993. The second item is a photographic version of the screen-print, used on the sleeve of a CD containing an interview with Elvis Costello, which was used by Demon Records as a promotional item and included free with the CD “Blood and Chocolate”, released in 1995. In order to understand the significance of the boxed-set, it is necessary to say something about the changes that occurred between 1977 and then, in relation to recordings of Elvis Costello. By late 1977 Mr Robinson and Mr Riviera had decided to go their separate ways. It took a little time to disentangle their affairs and for Mr Riviera to remove from the premises of Stiff Records the property to which he was entitled. The separation of interests took place during the course of the Stiff tour. On 4th October 1977 Riviera Global Record Productions Limited (“Riviera Global”) was incorporated, and Mr Riviera agreed with Mr Robinson that he would leave once the tour had finished. The principal artist who went with Mr Riviera to Riviera Global was Elvis Costello, and he continued to be managed by Mr Riviera until 1995. Mr Riviera says, and Mr Robinson accepts, that it was agreed between them that Mr Riviera would take with him any of the property of Stiff Records relating to Elvis Costello, including copies of any photographs taken of the artist and retained by Stiff Records. In early 1993 a decision was taken to release the pre-1988 back catalogue of Elvis Costello’s recordings. Riviera Global controlled the rights to these recordings for the entire world, and Mr Riviera decided that it would license the recordings for sale in the USA and Canada to a company called Rykodisc Inc. and the rights for the rest of the world would be licensed to Demon Records Limited, then a wholly owned subsidiary of F-Beat Records Limited, a company owned and controlled by Elvis Costello, Mr Riviera and Mr Lew Difford. The recordings were released as four CDs in a boxed-set with a colour booklet. As already indicated, the cover of the boxed-set featured the photograph coloured up in yellow and red.

16. Discussions were needed to establish how the back catalogue would be marketed, and a meeting was arranged for 3rd June 1993 between Mr Costello, Mr Riviera, Mr Difford and Mr Val Jennings, who was then the Project Manager of Demon Records, on the one hand, and various representatives of Rykodisc. The agenda for that meeting, which was in evidence, indicates that one of the matters to be considered was the presentation of the boxed-set, including “copyright considerations (artwork)”. Minutes were prepared of the meeting and distributed to all parties. They had agreed that the booklet in the boxed-set would feature all the elements of the original sleeves plus some additional contemporary photographs. It was also envisaged that the screen-print would be used as part of the promotional material, but this did not in fact take place. To satisfy Mr Riviera’s concerns as Mr Costello’s manager, all artwork and design to be generated by Demon Records was to be controlled by Riviera Global in consultation with Rykodisc. It was therefore clear, and Mr Riviera accepts, that he was to be intimately concerned with the presentation and packaging of the boxed-set. On 15th July 1993 an agreement was entered into between Riviera Global and Rykodisc which sets out the terms upon which the latter was granted the right to reproduce the back catalogue. For my purposes the relevant parts of the agreement are those concerning art and photographic work. Under clause 1.06 of the agreement Riviera Global granted to Rykodisc the “sole, irrevocable and exclusive right (under copyright and otherwise) and licence … to use the artwork, packaging, posters and other materials delivered hereunder in connection with the sale and exploitation of recordings and records derived therefrom in the Territory”. Under clause 10 of the agreement, Riviera Global warranted that neither the recordings nor any other materials as therein defined would “inviolate or infringe upon the rights of any third party”. “Materials” as defined in the clause was to include artistic and literary materials selected by Riviera Global and contained in, or used in connection with, the recordings or the packaging, sale, distribution, advertising, publicising or other exploitation of the recordings. It therefore clearly extends to any copyright in the photograph. Mr Riviera says that he cannot remember whether a decision had already been taken to use the photograph at the time of the meeting in June, but he obviously exercised a high degree of control over the promotional material, and his evidence (which I accept) is that the print of the photograph used for the cover of the boxed-set was taken out of the photographic records maintained by Riviera Global at the time. The company kept copies of various photographs as part of what one might describe as archive material, so that it could supply them to the music press when they required an old photograph for the purposes, for example, of an article. It is unclear precisely how the print (which was probably in 10 x 8 size) came to be with Riviera Global, but it was almost certainly obtained from Stiff Records at the time of the split in October 1977. There is certainly no evidence to suggest that Riviera Global subsequently requested Mr Gabrin to provide an additional copy.

17. In August 1993 Mr Riviera asked Mr Difford to send to Mr Gabrin and other photographers whose photographs were to be used in the booklet accompanying the boxed-set a standard-form letter enclosing what was described as an ex gratia payment of £500 “by way of goodwill gesture … to show that we haven’t simply taken your contribution for granted”. The letter begins with the following two paragraphs:

“We are about to re-release Elvis’s first three albums repackaged in a box, containing a 16-page book, individual CDs and booklets (also available separately), bonus extra tracks and bonus CD.

While most of the artwork is taken from the original sleeves/CD booklets etc, we have included in the 16-page book, additional shots from our pictorial archive for which you have been credited, and were taken by you at the time of the original commission”.

Each of the letters makes provision for the photographer in question to sign and return the letter as a receipt. Mr Gabrin seems to have signed and returned his letter on August 1993, the day on which he received the letter and the cheque.

18. Mr Difford, who signed the letter on behalf of Riviera Global, said that the terms of the letters were approved by Mr Riviera, and Mr Riviera accepts that. Mr Difford’s evidence is that Mr Riviera considered the photograph and the screen-print to be the property of Riviera Global to use as it chose, and that his instructions were to send to Mr Gabrin and the other photographers a goodwill gesture. He accepts that Mr Riviera wanted a payment to be made, but not that he (Mr Riviera) thought that he was under an obligation to make one. Mr Riviera told him that it was alright to use the photograph and he saw no reason not to do so.. The main difference between the evidence of Mr Riviera and Mr Difford in relation to the boxed-set and these letters lies in the question of copyright. Mr Riviera was adamant that he regarded the copyright in the photographs that were used as belonging to the photographers. The only exceptions were photographs that had been acquired for use previously on a record sleeve. He felt that a payment should be made to the photographers because their work was now to be used to promote the boxed-set and to make money for Riviera Global and Rykodisc, but he accepts that he told Mr Difford in terms to write letters to the relevant photographers offering them payments as a goodwill gesture. He also said that he telephoned the Claimant to discuss the matter.

19. It seems to be accepted by Mr Riviera that the letters to the photographers were not sent out until after the artwork had been delivered to Rykodisc in accordance with the agreement to which I have already referred. The consequence of that was that Mr Riviera had already warranted that the use of the photographs and the other artwork was free of any copyright problems. It is clear to me from hearing him, and from all the other evidence in this case, that Mr Riviera is an extremely skilful and intelligent operator in the music business and well understood the need, for want of a better word, for keeping everybody sweet. As I have already mentioned, he did not distinguish in his own mind (as did the Claimant) between photographs used for publicity and those used for advertising and promotional purposes. The distinction he made was between photographs used on record sleeves, for which a copyright payment was always made, and other material. His evidence was that he regarded the outer box of the boxed-set as artwork or advertising material and as not being the equivalent of a record sleeve as such. He felt that some extra payment was justified because of the commercial use that was now to be made of the photograph, but he was clearly not anxious to concede that he did not have the right to reproduce the image on the boxes. It seems to me that the letters which were written were an attempt to offer a payment for the use of the photographs without in terms conceding that Riviera Global and Rykodisc were not entitled, without the photographers’ consent, to make use of the photographs in the way that was intended. I do not regard these letters as inconsistent with the Claimant’s case that he retained the copyright in the photograph, or with an understanding on the part of Mr Riviera at the time, that that was the position. Mr Riviera was in truth trying to protect his position and have it both ways. The fact that he thought it necessary to send the letters and the payments is, if anything, an indication that he thought Riviera Global might not have the necessary rights authorising the use of the photographs on the box and in the booklet. His anxiety in the light of the arrangements he had entered into with Rykodisc to avoid any dispute with the photographers is understandable. But I do not accept that it is only explicable on the basis that he believed that Riviera Global owned the copyright in the photograph. It is equally consistent with Mr Riviera believing that his company, as the successor to Stiff Records, had acquired a licence to use the photograph for advertising purposes, and this was his evidence. The tactics were in fact well-judged, because each of the photographers appears to have accepted the payment without objection. This included Keith Morris, who said in evidence that he retained the copyright in the photographs he took, yet was content to accept the so-called ex gratia payment with the addition of VAT.

20. Mr Gabrin’s evidence about the boxed-set is that he was not asked for his consent to use the photograph on the cover of the box. His evidence is not, therefore, consistent with that of Mr Riviera, who said that he had spoken to Mr Gabrin about it. I do not accept that evidence and I regard it as wishful thinking. The first that Mr Gabrin (and, I suspect, the other photographers) knew of the proposal to use their work in relation to the boxed-set was when they received the letters in August. Mr Gabrin said that he was content to receive the £500, believing, as he did, that it was for the use of his photograph in the booklet. The letters did not in terms indicate anything different. In particular Mr Gabrin’s letter (which was in the same form as all the others) did not specifically refer to the use of his photograph on the box cover itself. He said that when he later saw the picture on the cover he was annoyed, but was told that it was to be a limited edition. He has since discovered that it is not a limited edition, but has presumably decided to be realistic about it.

21. The other item dealt with in the evidence was the interview CD given away with “Blood and Chocolate”. As I have already indicated, this was a promotional item. I understand from Mr Jennings that about 10,000 copies of the CD were pressed and wrapped with the “Blood and Chocolate” CD. Mr Riviera was asked about this promotional CD. In his witness statement he says that it was made available to journalists to promote the 1993 boxed-set. That is clearly wrong, as he accepted in cross-examination. He said that although the CD was given away free, the Claimant should probably have been paid an additional fee. In the event he was not. Mr Gabrin’s position is quite simply that he was unaware of the promotional CD and therefore was not put in the position of having to consider how best to protect his rights.

22. The three principal witnesses in this action who have personal knowledge of what was agreed in 1977 all say that, with the exception of photographs used for record sleeves, where a copyright fee was paid and the copyright assigned, copyright in the photographic material remained with the photographers. None of the Defendant’s witnesses is in a position directly to contradict that evidence. The most that witnesses like Mr Difford and Mr Jennings are able to do is to explain how, from their own knowledge, people like Mr Riviera subsequently dealt with material the copyright in which, on Mr Gabrin’s case, still belonged to him. And their evidence in relation to that is really limited to Mr Riviera’s conduct in relation to the boxed-set, which I have already commented on. Mr Cullen did not go so far as to suggest that the Claimant and his witnesses were lying to the Court when they said that their understanding of what had been agreed was that copyright in items such as the photograph remained with the photographer. It was certainly never put to any of them that they were deliberately seeking to misrepresent the truth. Mr Cullen’s challenge to the Claimant’s case is really based on the evidence being unreliable after this period of time. We are, of course, dealing with events which happened more than 25 years ago. For most people that is an impossibly long period of time over which to recall with any accuracy the details of conversations, absent some supporting documentation from which to refresh their memories. There is also the not-uncommon tendency on the part of those involved in litigation to recall events in the light of what they hope they will reveal and, in so doing, to blur the distinction between reality and their expectations. I have therefore approached the evidence of the Claimant and that of Mr Riviera and Mr Robinson with some caution. But it has not been suggested that they have collaborated on their story, and there have been a number of points of detail on which their accounts of events have diverged. I accept the evidence of each of them as being an honest attempt to recall the events of a long time ago and to explain what they believe the basis of the commercial dealings between Mr Gabrin and Stiff Records was. Mr Cullen suggested to the witnesses that the true nature of the arrangements was that a photographer such as Mr Gabrin would be engaged to take photographs at a particular shoot and that, in the case of publicity photographs, it was agreed that he would be paid a fee of up to £50 to cover his time, effort and expenses, regardless of whether any of the photographs came to be used. There was therefore, he said, a commission within the meaning of s.4(3) of the 1956 Act, and no agreement to counteract its legal effects. The reason for that was that Mr Gabrin, Mr Riviera and Mr Robinson believed that the copyright in publicity photographs remained with the photographer and therefore did not make it necessary to make specific arrangements or an agreement in respect of that. I am not satisfied that this was the case. There are clearly some differences between these witnesses as to the terms for payment in respect of a publicity shoot. Mr Gabrin said that he was always promised a refund of expenses, but that a further fee, even for a publicity shoot, depended upon Stiff deciding that there were at least some photographs which it could use. Unless and until it picked such photographs, no further payment was due. Mr Riviera confirmed that the practice of Stiff Records was to offer a small advance to cover expenses and to pay a shoot fee of £50 for publicity photographs, to enable them to send any photographs they chose out to the relevant music magazines and papers. His understanding at the time was that the copyright remained vested in Mr Gabrin, except where individual photographs were purchased for use on record sleeves. The evidence of Mr Robinson was slightly different. He said that it was he, rather than Mr Riviera, who was responsible for introducing Mr Gabrin to Stiff Records, and that the arrangements implemented in relation to the payment to Mr Gabrin for photographs were the same as had applied to their earlier collaborations. The agreement, he said, was that Mr Gabrin would get at least £50, including his expenses, and that he, Mr Riviera and Mr Bubbles would pick the photographs they wanted from any particular shoot. They would try to use as many photos as possible, but it was always understood that the photos would belong to Mr Gabrin, unless Stiff purchased a particular photograph and acquired the copyright. He said that the 1977 photo shoot was the fifth or sixth session which Mr Gabrin had done for Stiff. At the time of the first shoot Mr Robinson had confirmed the arrangements that would apply. This was a shoot done for Nick Lowe. Mr Robinson says that it was unlikely that they mentioned the copyright by name, but certainly they were likely to have referred to rights in the photographs. He did business with Mr Gabrin on the understanding, shared by both of them, that the pictures and the rights in them belonged to Mr Gabrin unless they were acquired by Stiff for use on a record sleeve. Mr Robinson said that if Stiff did not have the rights to a particular photograph, but subsequently wanted to use it for advertising or other purposes, then, to use his words, they juggled a bit. Sometimes they agreed to make a payment, sometimes they did not. The Claimant was apparently very protective of his work and would often complain if his photographs were subsequently used and he was not paid. He was not in any sense distant from Stiff. In fact quite the opposite. He often came into Stiff’s offices and wanted to know what his pictures were being used for. Mr Robinson said that Mr Riviera would use any photo to hand for anything, and this is consistent with my view of his character. One of the questions put to both Mr Robinson and Mr Riviera was why Stiff was prepared to allow copyright in photographs of its artists to remain with Mr Gabrin, who could then exploit them as he wished. Their answer was that, as part of the overall arrangements, it was agreed that they would have a veto over the use of shots which they considered to be unflattering or in any way unsuitable. Mr Gabrin accepted this. The practice was for Mr Riviera or Mr Robinson to mark up the items on the contact sheets which they did not wish to be used, and this information was then passed to Mr Gabrin. He accepted this constraint, most of all because he had no wish to offend Stiff Records, with whom he had an amicable working relationship and on whom his work as a photographer depended.

23. Although these arrangements were informal, in the sense that they were not at any time written down in some formal documentation, they were, in my judgment, clearly contractual and were intended from both sides to be the established basis for their commercial dealings. I do not accept that no thought was ever given to the position on copyright. The question of who owned the right to exploit the images, for example on a record sleeve, was obviously recognised from the start as being of considerable importance to Stiff Records, and they understood that they had to pay for such rights. By contrast, they could get the benefit of a publicity shoot for a relatively small fee, thereby entitling them to use as many of the photographs as they liked for publicity purposes. That was not intended to pass the copyright in such photographs, and Stiff Records were not prepared to pay for that. They doubtless took the view that if they required the copyright in any particular photograph, there would be no difficulty in acquiring that right, for payment, from Mr Gabrin. Mr Cullen places some emphasis on the fact that the word “copyright” may not have been used in the discussions. Both Mr Riviera and Mr Robinson accept that. But the absence of any express agreement that copyright in the photographs should pass, even in relation to record sleeves, and that only “rights” were discussed, leaves open the possibility that the correct analysis is that Mr Gabrin retained copyright in all photographs, and that Stiff only ever got licences to exploit the images. This does not assist Universal. Their case on copyright really depends upon my accepting that the photographs were commissioned within the meaning of s.4(3) and that no agreement was ever reached to counteract the effect of that provision.

24. In one sense the photo shoots were commissioned, and it was not an inaccurate use of that word in the August 1993 letters. Clearly, on the evidence of all the witnesses, Mr Gabrin was entitled to receive a payment equivalent to his expenses, regardless of whether any of the photographs came ultimately to be used. I have heard argument as to whether or not that amounts to a commission within the meaning of s.4(3). Mr Cullen’s case is that, even if the only payment promised in advance was the reimbursement of expenses, this still amounted to the commissioning of Mr Gabrin by Stiff Records to take the photographs. The argument, he said, becomes stronger if one accepts Mr Robinson’s version of the agreement, which was that Mr Gabrin was entitled to a fee plus expenses for the shoot. I do not accept this. Section 4(3) only applies if the paying party commissions the taking of a photograph and agrees to pay for it. There must, therefore, be an agreement to pay or payment for the photograph in advance. None of the evidence indicated that there was any agreement to pay for the photographs as such. The fee offered to Mr Gabrin for the shoot was either reimbursement for his expenses or, at most, that plus a small additional amount. Neither Mr Robinson nor Mr Riviera agreed to buy, or thought they were buying, the photographs. The process of selection which followed is quite inconsistent with that. I prefer the evidence of Mr Riviera and Mr Gabrin on this. But even if the £50 was offered up front, the payment was intended to do no more than compensate Mr Gabrin for his time and expenses, and to give Stiff a licence to use the photographs. That is all that it was paid for. If Stiff wanted to acquire a photograph for use on a record sleeve, then it agreed to pay an additional price for that. On Universal’s argument, that payment was completely unnecessary. It had already acquired the copyright simply by the process of the reimbursement of expenses or the payment of the global £50 fee.

25. But even if I am wrong about whether the arrangements for the shoot amounted to a commission, there was, in my judgment, a contrary agreement which had the effect of excluding the operation of s.4(3). I am satisfied, having heard the evidence, that it was agreed between Stiff Records and Mr Gabrin that Mr Gabrin would retain the copyright in any photographs he took which were not purchased by Stiff Records for use on a record sleeve. I do not accept that the inconsistencies between the evidence of the Claimant and his witnesses, Mr Riviera and Mr Robinson, make it impossible to accept that there was an agreement of the kind alleged. I say that, even in the face of a difference of recollection between Mr Riviera and Mr Robinson as to who made the agreement. It is no surprise that their accounts differ in a number of respects, bearing in mind that we are looking at events so long ago. But it is accepted that additional payments were made for record sleeves, and that such payments carried with them either the copyright or very extensive rights to use, and license the use of, the photographs in connection with the recordings. Mr Cullen suggested that this could be explained as an acceptance by Stiff that it had to pay more, if particular photographs it had acquired were to be put to profitable use. But I find that an unlikely agreement to have been made. It seems to me far more probable that Stiff recognised the need to secure the copyright, or something very close to it, in the photographs used on record sleeves and paid accordingly. Records were its primary source of revenue. For everything else, a restricted licence to use the shots for publicity or advertising purposes sufficed, and the £50 fee meant that they obtained the right to use these photographs comparatively cheaply. The retention of the copyright is also consistent with Mr Gabrin receiving reproduction fees from newspapers, which it is accepted that he did. Mr Cullen suggested that it was likely that Stiff would have wanted to obtain control over all the images. But this ignores the relationship they had with Mr Gabrin and their financial position at the time. They were obviously confident that the veto procedure which had been agreed would be respected by the Claimant and not abused. There is nothing to suggest that they were wrong in that assessment. I therefore find that the photograph was taken under an agreement by which Mr Gabrin would retain the copyright, unless that or a similar right was specifically purchased. It follows that Mr Gabrin has at all material times remained the owner of the copyright in the photograph.

THE SCREEN-PRINT

26. As already indicated, it is common ground that the screen-print was made shortly before the start of the Stiff tour in October 1977. Although Mr Riviera had not selected the photograph from the contact sheets when they were first produced, Mr Bubbles identified the photograph of Elvis Costello and one of each of the four other main artists as suitable for creating individual screen-prints which could be sold essentially as souvenirs to people attending the concerts on the tour. At that time there was very little by way of souvenirs and merchandise sold and Mr Robinson’s wife, or possibly another agent (Kosmo Vinyl), agreed to try to sell the posters. The Claimant’s claim is that Mr Robinson and Mr Riviera, having satisfied themselves that the posters projected the sort of image they were looking for, were happy for Mr Bubbles and Mr Gabrin to take any profits. The latter agreed between themselves that Mr Bubbles would sort out the printing costs with the printer and Mr Gabrin would pay the costs of providing the necessary photographs. The hope was that the printing costs would be met from the proceeds of sale of the posters before they had to be paid. It was decided to sell each poster for £1. The production costs amounted to about 50p per poster. The printers required a minimum order per poster of 200, so that the potential outlay was not inconsiderable. Unfortunately the posters did not sell terribly well. Two of the artists, Elvis Costello and Ian Dury, were more popular, and reasonable sales were made of their posters, but the indication is that a great many of the other posters remained unsold. There were losses, and Mr Gabrin says that he gave Mr Bubbles something over £100 as a contribution towards them.

27. Although Mr Gabrin gave evidence about the production of the screen-print being a joint venture to the extent that I have indicated, he accepted that nothing in terms was agreed about copyright. He said that he assumed that he and Mr Bubbles would share the copyright, but there was no express agreement to that effect. Mr Riviera said that he was asked by Mr Bubbles if Stiff was agreeable to the screen-prints being made and if he and Mr Gabrin could sell them on the tour to make some money. Mr Riviera was content to agree to that, provided that no expense was incurred by Stiff. Stiff bought a number of the posters to use for publicity purposes and the artists got one each. One of the problems about the posters, and perhaps the reason why they did not sell particularly well, was their size. They were 60 x 40 inches and, as such, too big for the average student’s wall. The image, however, of Elvis Costello is extremely striking and it is no wonder that it has subsequently been used to promote the sale of his records.

28. Mr Riviera and Mr Robinson accepted that the artwork which Mr Bubbles did for Stiff Records in order to promote the tour, and which was paid for by Stiff Records, vested the copyright in the company. There are no invoices from Mr Bubbles to Stiff Records in evidence, but examples survive of invoices which he sent to F-Beat Records in the early 1980s and it is clear from those that many of the fees charged were not insignificant. There is no evidence, however, that the screen-print was commissioned as such for payment by Stiff Records, although it undoubtedly exercised some degree of artistic veto over the subject-matter. Mr Robinson denied the suggestion put to him in cross-examination that the screen-prints were produced by Mr Bubbles for Stiff. He said that what appears to be a quotation from him contained in a book entitled “No Sleep Till Canvey Island” by Will Birch is an inaccurate précis of what he said or at least meant to say.

29. It seems to me that there was no agreement between Mr Gabrin and Mr Bubbles about any joint ownership of the copyright at the time they collaborated on this image, and although Mr Gabrin did share some of the expenses and of course was the author of the photograph, that would not of itself give him any interest in the copyright in the screen-print, of which Mr Bubbles was the author. Miss Michaels has suggested that the arrangements between them amounted to a partnership, but that seems to me an unrealistic view of the matter. I think that they entered into a loose arrangement to share profits and, if necessary, expenses, but it was nothing more than that. This may explain why, in the correspondence in 1999, no assertion of copyright in the screen-print was made. But that leaves two further questions to be determined. The first is whether Mr Bubbles acquired the copyright in the work at all. The second is whether his title to the copyright has been passed to Mr Gabrin by the assignment executed by Mrs Jewiss in October 2001.

30. On the first issue Mr Cullen submits that the most likely event is that the screen-print was commissioned by Stiff Records for its own use and that it therefore acquired the copyright in the work. He said that the screen-print could be regarded as an “engraving” within s.4(3) of the 1956 Act, but I reject that. “Engraving” is defined in s.48 of the Act to include any “etching, lithograph, woodcut, print or similar work” and I share the view expressed by the editors of Copinger on Copyright that the common feature of all these processes is some form of cutting or incision. Screen-printing does not involve this. However, that point is of limited importance because, as Miss Michaels accepts, a commission for a screen-print will often result in the commissioning party acquiring the copyright as a matter of contract, regardless of the provisions of s.4(3). The real question, therefore, is what was agreed.

31. The evidence of both Mr Robinson and Mr Riviera is that they agreed to allow Mr Bubbles to produce the poster for sale on the tour, and that he and Mr Gabrin should receive any profits. There is no suggestion that there was any real discussion about copyright or the right to reproduce the image, but it is clear that Mr Riviera approved the form of the screen-print at the time he was approached by Mr Bubbles and agreed that the poster would be used to promote the Stiff tour. Mr Riviera’s evidence was that Stiff did not, however, pay towards the cost of producing the screen-print and that he left it to Mr Bubbles to bear those expenses.

32. I am not satisfied that the screen-prints were other than a form of private initiative by Mr Gabrin and Mr Bubbles, carried out with the approval of Stiff Records, and that any question of a commission arises. Mr Geller, who worked for CBS Records when it was licensed to produce and sell Elvis Costello recordings in the United States and North America, says that CBS used the screen-print extensively to promote the artist. They gave it away as a competition prize in radio contests for retail display. It was also hung in their offices. He goes on to say in his witness statement that Mr Riviera offered the poster to them and suggested that they could either buy copies from Stiff or could manufacture it for themselves. Mr Geller says they chose to buy copies, because that was more timely and cost-effective, and his recollection is that they purchased several hundred of them. Mr Geller’s evidence was admitted under a Civil Evidence Act notice and he has not attended for cross-examination. It was not possible for Miss Michaels, therefore, to put to him any material which would test his recollection. Mr Riviera is certain that Stiff did not manufacture further copies of the screen-print and that if CBS did produce several hundred new copies, it was by some form of photographic reproduction. I am not satisfied that it would be safe to reject that evidence in favour of the untested evidence of Mr Geller. But ultimately the resolution of this dispute does not matter. Even if (as I have held) there was no commission, it seems clear to me that both Mr Bubbles and Mr Riviera accepted and agreed that the posters would be used for promotional purposes, including the sale of the posters as a form of souvenir. The evidence suggests that they were also put up in places to advertise the concerts. It was clearly envisaged that they could be used for that purpose, and Mr Riviera said that he told CBS it could use the screen-print in the same way. Mr Jennings’s evidence was that Mr Riviera also approved the use of the screen-print on the “Blood and Chocolate” interview CD. It has to be remembered that the poster was produced and these discussions took place between Mr Bubbles and Mr Riviera at a time when Mr Riviera was in the process of leaving Stiff Records. The discussions were both informal and one-off. They were not comparable to the arrangements agreed with Mr Gabrin in respect of the photographs. I have come to the conclusion that nothing more was agreed in relation to the screen-print than a loose arrangement under which Mr Bubbles could produce and sell the poster for his and Mr Gabrin’s benefit, but Stiff would be able to use and exploit the image in order to advertise its artists. Mr Riviera (as already explained) took a liberal view of what that included. He clearly felt able to license its use for advertising by CBS, and he took the same view about the promotional interview CD. But it was not suggested to these witnesses that there was ever any discussion about, or that Mr Bubbles and Mr Riviera ever contemplated, the possible future use of the screen-print on a CD or record cover.

33. It follows that Mr Bubbles acquired copyright in the screen-print by being the author of the work. This was subject to the licence to use the screen-print for advertising purposes, but that did not include the use of it in the 1999 CD booklet. That leads to the second question, which is whether Mr Gabrin has acquired title under the assignment. Mrs Jewiss executed the assignment on the basis that she is the sister and sole beneficiary of her late brother’s estate. There is a suggestion in the correspondence that Mr Bubbles had a son, but I have been told by Miss Michaels that her solicitors’ enquiries indicate that the son was adopted before the date of his father’s death and therefore had no rights of succession under an intestacy. If Mrs Jewiss was properly appointed as the administratrix of the estate, she had the legal title to the copyright and could therefore assign it to herself and Mr Gabrin as trustees. The effectiveness of the trust declared in respect of the beneficial ownership of the copyright will depend upon whether she was in fact her brother’s sole surviving close relative, but Mr Cullen has not suggested that I should not accept the evidence in her statement that she was. The real issue, therefore, is whether there was a grant. If no grant was obtained, then Mr Bubbles’s rights to the copyright (both legal and equitable) remain vested in the Public Trustee under the provisions of the Administration of Estates Act 1925 and the 2001 assignment was of no effect.

34. In her witness statement Mrs Jewiss says (in paragraph 5) that when her brother died on 14th November 1983, “I became the Administrator of his estate as his only surviving close relative”. She then goes on to say that after a tax bill of some £40,000 had been paid, together with other debts, there was practically nothing left in the estate. Her evidence is that, apart from one or two items of property such as two gold discs which were given to her prior to her brother’s death, she received nothing from the estate. In the agreement of 15th October 2001 there is no recital which in terms states that she was at the time the Administrator of the estate, and in fact clause 3 of the agreement contains a warranty by Mrs Jewiss in favour of Mr Gabrin, that she is able to assign the rights assigned under the agreement free of all encumbrances.

35. The best evidence of the grant of letters of administration is a copy of the grant itself, whether in its original form or by way of a copy produced from the records of the appropriate Registry of the Family Division. The grant may also be proved by production of the Act-book or register, which would be admissible without accounting for the non-production of the letters of administration. A certified or examined copy of the Act-book or register will suffice for this purpose. Section 125 of the Supreme Court Act 1981 provides that an official certificate of the grant of letters of administration may be obtained from the Registry on payment of a fee. The best evidence rule requires that proof of the grant of letters of administration should be effected in this way. Secondary evidence is of course admissible to prove the grant, but the weight to be attached to such evidence must depend upon the party seeking to rely on it showing to the Court that he has made proper attempts to obtain the best evidence he can and that none of those enquiries has thrown any doubt upon the reliability of the secondary evidence. In my judgment, this is not the position in this case. I have been told by Miss Michaels that her instructing solicitors have made all the usual enquiries of the Probate Registry and have drawn a blank. The Registry has no record of any grant in respect of Mr Bubbles’s estate, whether in that name or in his real name. I am, I think, entitled to assume that Mrs Jewiss was asked about this and has been unable herself to produce a copy of the grant. This is presumably why there is no reference to it in the agreement of 15th October, and why she does not refer to it in terms or produce a copy of it, or even of an application for the grant as an exhibit to her witness statement. She has not attended Court to give evidence about these matters, and I do not therefore have any evidence from her that, to her personal knowledge, a grant was in fact applied for. I do not regard the reference in paragraph 5 of her witness statement to becoming the Administrator of her brother’s estate on his death as being evidence of that kind. Without wishing to be unduly technical, it is clear that she did not and could not have become the Administrator without a grant. It may well be that she is using that term in an informal sense. I think that I am entitled to take judicial notice of the fact that all grants made out of the Registry are recorded, and that that system is likely to have been properly maintained and therefore to be close to conclusive as to whether or not a grant was in fact made. If one adds to that the evidence of Mrs Jewiss that her brother’s estate had a nil value after payment of tax and other debts, it seems to me highly likely that she was unwilling to incur the expense of taking a grant for the purpose of administering an insolvent or near-insolvent estate. As against this, Miss Michaels relies on a number of points in support of her case that there was a grant. The first is a submission that Universal must be taken to have admitted Mrs Jewiss’s title by relying upon her witness statement. In order to raise some kind of estoppel, the tendering of the witness statement would have to amount to an unequivocal representation that Universal has accepted Mrs Jewiss’s title as Administratrix. The witness statement becomes evidence when it is used at trial, and Mr Cullen has always made it clear that it is his client’s position that they do not accept, and put Mrs Jewiss to proof, that she did obtain a grant. In these circumstances no such estoppel can arise. The Claimant also relies on various factual matters from which I was invited to infer that a grant had been obtained. The first is the letter from Messrs Parmenter & Co, solicitors, dated 5th January 1984, in which they say that they have been instructed to act in the administration of Mr Bubbles’s estate and are in the process of applying for guardians to be appointed to act in the administration on behalf of Mr Bubbles’s son. The second is a note indicating that, shortly prior to his death, Mr Bubbles was contemplating the sale of his property in order to pay his debts. It is said that this cannot have gone ahead after his death without the benefit of a grant. Finally, Miss Michaels relies upon the company records of Ditchwater Limited, the company owned by Mr Bubbles, which purport to show the transfer of Mr Bubbles’s shares to his “executor” and then on to Mrs Jewiss in 1985. Although each of these matters can be said to raise a possible inference that a grant was obtained, I have to set against that the known fact that no record of any such grant can be found. I am not satisfied, therefore, that the Claimant, Mr Gabrin, has established on the balance of probabilities that there was a grant of letters of administration in favour of Mrs Jewiss prior to the making of the agreement in October 2001. This is not merely a technical or legal point. On the findings I have made, Mr Gabrin did not enjoy joint ownership of the copyright as a result of his collaboration with Mr Bubbles on the screen-print. The agreement with Mrs Jewiss was therefore entered into on a false premise. But for that agreement, Mr Gabrin would have no title, either legal or equitable, to the copyright. In these circumstances Universal is, I think, entitled to insist that the case for a grant be properly made out. For the reasons I have explained, it is not. That means that Mr Gabrin’s only claim for infringement depends upon his ownership of the copyright in the original photograph. The unauthorised use of the photograph by Universal, as part of the screen-print, would constitute an infringement. That is common ground. But Mr Cullen relies on two possible defences to such a claim. The first is that Mr Gabrin, by allowing the photograph to be used as the basis for the screen-print, gave to Mr Bubbles a licence to use the photograph and to license its use as part of the screen-print for all purposes. His second argument is the one based on estoppel and acquiescence.

36. The first issue is really concluded against Universal by the findings of fact which I have already made. Although I am prepared to accept that, as part of the arrangements between Mr Bubbles and Stiff Records, it was agreed that the company should have a licence to use the screen-print for advertising and promotional purposes, there was no agreement that that licence should extend to its use on a booklet accompanying a CD or on a record sleeve. Nor would Mr Gabrin have been prepared, in my judgment, to have granted such a licence, had he been asked to do so. The grant of a wide licence of that kind is likely to have required the payment of an appropriate fee by Stiff or its successors, and that question never arose. By the time the CD came to be released in 1999, Mr Riviera no longer managed Elvis Costello and was not involved in authorising the use of the screen-print in connection with the CD booklet. There was therefore no licence or right, either express or implied, granted by Mr Gabrin to Mr Bubbles or, for that matter, by Mr Bubbles to Stiff Records, on which Universal can rely as justifying the use of the photograph as part of the screen-print.

37. That leaves the final issue of estoppel or acquiescence. Universal’s case on this is that the decision to use the screen-print on the CD was made by Elvis Costello and his management. That decision was made (it is said) in the belief that they had the necessary rights. That belief had been encouraged and confirmed over the years by the Claimant as a result of his failure to make any complaint about the use of the photograph and the other photographs taken at the same session on advertising and promotional material, including the 1993 boxed-set. It is not therefore alleged that Mr Gabrin’s prior conduct was either known to or relied upon by Universal in deciding to use the screen-print in 1999. Nor is it alleged that Mr Costello’s management at that time were themselves actually aware of, and relying upon, anything which Mr Gabrin may have done in earlier years. The equity is said to have arisen in favour of Mr Riviera and Demon Records, and Universal seeks to take advantage of that equity by process of licensing an assignment under which they can trace title back to Demon Records. However, for the defence to succeed, I must be satisfied that the Claimant would have been estopped, as against Demon Records, from seeking to prevent the use of his photograph on a CD album or record, had Demon Records or one of Mr Riviera’s other companies sought to make such use of it.

38. For present purposes I am prepared to accept, without deciding, that Universal would be entitled to the benefit of any equity created as a result of Mr Gabrin’s dealings with Mr Riviera and his companies. The real difficulty about this defence lies in asserting any equity on the part of Mr Riviera. Mr Cullen has referred me to the well-known judgment of Oliver J in Taylors Fashions Ltd. v. Liverpool Victoria Trustees Co. Ltd. [1982] 1QB 133, in which he encouraged the courts to take a broad view, for purposes of estoppel by acquiescence, of the circumstances that might make it unconscionable for the party in question to rely on his or her strict legal rights. At page 151H he said this:

“Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial - requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly, or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”

I am prepared to apply this test to the facts of this case, but the adoption of a less stringent test of encouragement really makes no difference. Even if I accept Mr Riviera’s evidence (which I do) as to the scope of the licence granted to Stiff Records in respect of the use of photographs, the fact is that Mr Riviera knew and accepted from the start that, if a photograph was to be used on a record sleeve (and therefore later a CD), a special fee had to be paid. Virtually all of the instances of alleged acquiescence relied on by Universal are ones in which one of the publicity photographs was used on some form of advertisement. I have already set out my findings of fact about that. The only two instances which come close to Mr Gabrin permitting, without complaint, the use of the photograph on a record or CD are the boxed-set and the interview CD. Mr Riviera authorised the use of the photograph on both, because he believed he was entitled to do so under his original agreement with Mr Gabrin. There is nothing to suggest that Mr Gabrin’s earlier conduct had anything to do with it. Nor is there any evidence that Mr Riviera took Mr Gabrin’s failure to complain about the use of the photograph on the cover of the boxed-set as giving him some sort of carte blanche to authorise its use generally in relation to other Elvis Costello recordings. On the contrary, he sought to pacify Mr Gabrin by the payment of the £500 fee and by telling him (inaccurately) that it was only a limited edition. Nor do I see how it can be considered unconscionable for Mr Gabrin to insist on his rights against Universal, merely because the screen-print was used on the interview CD without his knowledge. In any event, in relation to that as well, Mr Gabrin’s failure to complain had no impact and was of no relevance to Mr Riviera’s decision to authorise its use. This was again based solely on his view of the terms of the original licence.

39. The defence of estoppel and acquiescence therefore fails, and Mr Gabrin is, in my judgment, entitled to a remedy in respect of the unauthorised use of his photograph. Both damages and an injunction are claimed, but there is a serious issue as to whether it would be appropriate in the circumstances of this case for an injunction to be granted. I am also not concerned to deal with the assessment of damages, this trial being limited to questions of liability. As I therefore indicated to Counsel at the conclusion of the hearing, I propose to say nothing in this judgment about whether an injunction is appropriate. I will leave it to Counsel (in the absence of agreement) to make further submissions on that matter and on any issues relevant to damages, once they have had