BSI Enterprises Ltd & Anor v Blue Mountain Music Ltd

In this action the Claimants seek declarations that the First Claimant is the owner and the Second Claimant the exclusive licensee of the copyrights in the music and lyrics for certain songs by the famous reggae musician Bob Marley ("the Works"). They also claim an account of sums mistakenly had and received by the Defendant from copyright collecting societies in respect of the Works. The latter claim is contingent on the success of the former, as I shall explain below.

The Works comprise 13 songs written by Bob Marley in the early 1970s.

It is common ground that whether the Claimants are entitled to the copyrights in the Works depends on the proper interpretation of an agreement of March 1992 between, on the one hand, Island Logic Limited, and, on the other hand, Cayman Music Inc. ("CMI"), a New York company (an entirely different entity from the Second Claimant), various other associated companies, and an individual called Danny Sims, of whom I shall say more shortly. I will refer to this agreement as the March 1992 Agreement.

It is also colnmon ground between the parties now (although it was far from being so at the time) that at the date of the March 1992 Agreement the copyrights in the Works belonged to CMI. The Defendant asserts that the copyrights in the Works passed to Island Logic under the March 1992 Agreement, whereas the Claimants assert that the copyrights remained with CMI, from whom the First Claimant later acquired them. So my main task is to construe the March 1992 Agreement to determine who is right.

Having identified the central issue I now need to go back almost to the beginning of Bob Marley's career and explain the sequence of events leading to the March 1992 Agreement and beyond.

The relevant events begin in 1968 when Bob Marley made a publishing agreement with Johnny Nash Music Limited ("the 1968 Agreement").

Johnny Nash was a well known recording attist and partners in a record company called JAD with Danny Sims. Bob Marley was at some point (the precise date does not matter) signed as a recording artist to JAD, subject to an exclusive licence to CBS.

However, Bob Marley did not publicly describe himself as the author of the Works. He deliberately misattributed their authorship to various friends and associates. It is clear that his object in doing this was to gain control of the copyrights in the works and gain remuneration from them. This therefore benefited him, and it also benefited the persons to whom authorship was wrongly attributed because they received royalties from

This arrangement by Bob Marley was referred to by the parties at trial as the Misattribution Ploy.

Bob Marley's purported justification for the Misattribution Ploy was that he had not been paid any publishing royalties under the 1968 or 1973 publishing agreements. I do not know whether or not this is true but it does appear clear from the evidence of Mr Blackwell that Bob Marley thought he had a genuine grievance. Whether that grievance justified the Misattribution Ploy is a completely different matter, of course.

Island, in the person of Mr Blackwell, was made aware of the Misattribution Ploy at the time it was being perpetrated (probably in 1974), by Bob Marley, who also explained the purported reason why he was doing it. Mr Blackwell sympathised with Bob Marley to the extent that he had not been paid, but was not privy to any discussions or arguments between

Island paid mechanical royalties to the misattributed authors.

Bob Marley died intestate on 1 1 May 1981.

In 1984, CMI brought a complaint in New York against Rita Marley (Bob Marley's widow) as administratrix of his estate ("the Estate"), and various other parties including Island Records, Inc. ("the New York Action"). The claim was for damages and recovery of money obtained by the defendants using the Misattribution Ploy. Island Records, Inc. was a relatively peripheral defendant in that no money was claimed from it, but it shared lawyers with the other main defendants.

The defendants to the New York Action denied the Misattribution Ploy.

It is not now clear how Danny Sims obtained knowledge or suspicion of the Misattribution Ploy so as to bring the New York Action, but in any event the claim was dismissed on 14 January 1988 on grounds of limitation following a trial in November 1987 (directed only to the limitation issue) in which a jury concluded that Danny Sims "had discovered the fraud prior to October 24 1982". I was told that New York had a limitation period of two years for such claims.

It is common ground that because the New York Action was dismissed for limitation reasons and not on the substantive merits there was a possibility that the Misattribution Ploy dispute would be revived in some other forum. How large that possibility was is something I consider below.

For reasons recounted in his witness statement, whose details are not directly relevant but included a desire to protect Bob Marley's creative legacy in partnership with the Estate, Chris Blackwell and Island decided to seek to acquire the rights in Bob Marley's works, Including musical copyrights and publishing rights.

First and foremost, Island (in the form of Island Logic Inc.) did this by making an agreement with the Estate, on 27 April 1988 ("the 1988 Agreement"). The 1988 Agreement specifically listed the Works as being acquired by Island. I will return to its other provisions below.

There were many parties potentially interested in Bob Marley's estate, and there were a variety of challenges to the 1988 Agreement. Following protracted litigation a further agreement was made on 10 September 1992 ("the September 1992 Agreement") which confirmed the 1988 deal in modified form.

Between the 1988 Agreement and the September 1992 Agreement, Island became aware that Danny Sims was seeking to sell rights in various works by Bob Marley, including what had been obtained under the 1968 and 1973 publishing agreements. This was of particular interest to Island because combined with the 1988 Agreement (if and when ratified) it would give Island control of the great majority of Bob Marley's creative output.

This led to the negotiation and conclusion of the March 1992 Agreement.

I now move on to matters after the March 1992 Agreement. They are of no relevance to the interpretation of that agreement, but set the scene for the Claimants' interests and this dispute.

In 2006, Lewison J (as he then was) gave judgment in an action, begun in 2002, brought by Aston "Family Man" Barrett claiming rights in six of the Works. One of the Defendants to that claim was a company in the Island group and Mr Blackwell gave evidence for the defence. In the course of it he said that those six compositions were not included in the March 1992

This appears to have inspired the First Claimant to make a contract with CMI intended to buy the copyrights in the Works (as part of a larger collection), on the basis that if the copyrights were not included in the March 1992 Agreement they must still be with CMI. That agreement was made on 20 May 2008 ("the May 2008 Agreement").

On 1 October 2011, the First Claimant granted an exclusive licence to the Second Claimant.

These proceedings began by way of a claim form of 13 April 2012.

The Claimants called oral evidence from Mr Mark St John and Mr David Simmons.

Mr St John is an independent consultant in the music business and gave evidence about the May 2008 Agreement in support of the Claimants' argument that it included the Works. His evidence as to primary facts was not really challenged. He also gave evidence about the price paid by the First Claimant under the May 2008 Agreement (E250,000) which confirmed that the price was depressed by the obvious dispute over title. He was also challenged over which of two versions of the May 2008 Agreement was the correct one.

I thought Mr St John was entirely fair and honest and so far as it matters I accept his explanation of which version of the May 2008 Agreement was the right one (and Mr Mill QC who argued the Defendant's case with Mr Cleaver did not dispute it in closing). However, apart from the rather obvious point that disputed assets command a lower price, I thought his evidence was essentially irrelevant.

Mr Simmons is an accountant by profession but now administers music publishing rights and in the past has provided help and consultancy to others doing so. He advised and assisted Danny Sims and CMI in the negotiation of the March 1992 Agreement.

Mr Simmons was also very fair in his oral evidence, although I think it emerged that his recollection of events is less good than had been reflected in his written statement. This did not matter all that much, however. Cross-examination revealed that his evidence about the price paid under the March 1992 Agreement- was (I am sure unintentionally) a little inaccurate. I reject as irrelevant his subjective view of the meaning of the March 1992 Agreement.

Save as I have just mentioned, Mr Simmons' evidence tended to confirm aspects of the factual matrix, but there was little dispute as to them in any event*

The Claimants did not call any of their current principals to give evidence. This elicited a mild complaint from Mr Mill QC, given that Island had had to call Mr Blackwell, I do not think there is anything at all in the complaint, since I cannot see what relevant evidence they might have given.

By consent of the parties, I gave the Defendant permission to serve a late witness statement from Mr Hayes, formerly of Island, responding to Mr Simmons. There was only minimal challenge to this in cross-examination, and it consisted of an essentially semantic debate over paragraph 8 of his statement which I found to be of no assistance.

The Defendant's main witness was Mr Blackwell. He gave evidence spanning events from his first involvement with Bob Marley's music in the 1960s, through the circumstances surrounding the Misattribution Ploy, Bob Marley's death, the 1988 and 1992 Agreements, and his own evidence in the Aston Barrett litigation to which I have referred above.

Mr Cuddigan made clear "that he did not criticise Mr Blackwell as a witness. This lessens my task in assessing his oral evidence but I must nonetheless record my views.

Mr Blackwell agreed that he was aware of the Misattribution Ploy at the time. He was perhaps a little slow in addressing the question of whether he knew that it involved deceiving Mr Sims (and this is the only respect in which I had any difficulty with his evidence) but he fairly said that he did not know what passed between Bob Marley and Mr Sims and his recollection of a complex situation is now less than perfect.

I turn to his evidence in this case about what he said m oral evidence in the claim by Aston Barrett. It will be recalled that he said there that be believed six of the Works were not included in the March 1992 Agreement, and his statement in this case was that he was wrong. In his statement for this case he pointed out that he had not been shown the March 1992 Agreement, and said that he was tired after a full day of cross examination. He said that it was possible that he thought the six compositions in question had been assigned to Island under the 1988 and September 1992 Agreements with the Estate.

Mr Cuddigan pointed out in cross-examination that Mr Blackwell was not in fact at the end of a day's cross-examination in the 2006 trial when he made the relevant statements; rather, it was quite soon after the short adjournment. I do not think this point of detail matters. Mr Blackwell was over half way through his second day of cross examination. My own observation was that he tired quite quickly (albeit that I must allow for the fact that the 2006 trial is eight years ago). I have no doubt that he was tired at the relevant point in the 2006 trial, and that his recollection of being tired is an honest one.

Aside from that, I also accept Mr Blackwell's evidence that he may have mistakenly had in mind the agreements with the Estate, an explanation which draws added force from the fact he was not shown the March 1992 Agreement and anyway does not and did not have a mastery of its detail. I was also left with the firm impression that the scope of the 1992 Agreement was very peripheral to the Aston Barrett litigation.

More fundamentally, I cannot see that it matters at all even if Mr Blackwell was "wrong" in what he said about the March 1992 Agreement on an earlier occasion. The agreement means what it means.

There was also some cross-examination directed to Mr Blackwell's statements in the Aston Barrett litigation about having to pay more under the 1992 Agreement had the six Works i_n fact been included. Mr Blacluvell said this was wrong as well, but the nature of the criticism was never clear to me and anyway as will appear below Mr Cuddigan withdrew any reliance on arguments based on cost of the collations of compositions in the various agreements. I do not think Mr Blackwell was open to any criticism on this front; I do not think he understood what the criticism being put to him was.

Issue 1. The main issue is whether the copyrights in the Works were transferred to Island under the March 1992 Agreement, it now being

Issue 2. If the copyrights were not so transferred to Island under the March 1992 Agreement then I understand it to be common ground, and I would find, that they were transferred to the First Claimant in 2008. I need say no more about this contingent issue.

Issue 3. On the assumption that the First Claimant owns the copyrights, the Claimants claim in restitution for the payment to them of the momes received by Island from collecting societies by way of royalties.

Issue 4. Island asserts that it had an implied licence to do as it did, arismg from the Claimants' failure to notify Island of any claim, by analogy with Fisher v, Brooker [2006] EWHC 3239 (Ch), [2007] ESR 12.

The Claimants accept that no specific notice was given to Island of any claim prior to the Claim Form (there was a suggestion on day 1 of the trial of reliance on some pre-action correspondence but Mr Cuddigan abandoned it on day 2). But the Claimants say that Island was on notice as a result of its contemporaneous knowledge of the Misattribution Ploy in the 1970s and 1980s. I will deal with this under Issue 3.

The March 1992 Agreement is subject to New York law but neither side has led evidence of New York law so I will assume it to be the same as English law and apply that.

There was no dispute about the prlnciples of interpretation of contracts under English law; both sides referred me to the well known line of cases which includes ICS v. West Bromwich Building Society [1998] I WLR 896. I refer in particular to the following passage from the speech of Lord

Mr Cuddigan referred me to paragraph 28 where Lord Clarke referred to the process of interpretation as being ^can iterative process, involving checking each of the rival meanings against other provisions of the document and investigating its commercial consequences."

I did not understand these different citations from the same judgment to suggest any disagreement between the parties as to the relevant principles; they seem entirely consistent to me.

Mr Mill also referred me to Chitty on Contracts, 31 ^st Ed., 12-043. His purpose in doing so was to emphasise that the intention of the parties is to

These are basic propositions from which Mr Cuddigan did not (and realistically could not) dissent, but I think Mr Mill was right to refer me to the passage because, as I will explain below, I think a central fallacy in Mr Cuddigan's argument was to seek to identify the parties' intention and agreement from the surrounding circumstances and then to make the language of the document yield to them at all costs, rather than seek to find the intention and agreement in the document.

I should add a little more about points c and d in case it matters how likely it was thought to be that the Misattribution Ploy would be sued over again, and because the contrast between the Misattribution Ploy claim and the counterclaim in the New York proceedings has been debated before me and is relevant to Mr Cuddigan's argument.

I find that the likelihood of the Misattribution Ploy being litigated again was low, but perceived as bemg just about possible. It must be recalled that by March 1992 it was at least ten years since Mr Sims became aware of the

This view is supported by Mr Hayes' evidence as to Island's view (paragraph 7 of his statement, which was not challenged) although of course I accept that this is evidence of subjective belief and CMI may have seen things somewhat differently.

The counterclaim was different because it was an extant piece of litigation, whatever its perceived merits.

I should also mention point i — Island's desire to obtain as much of the Marley catalogue as possible. The mere fact that a party desires something has to be treated with care as part of the factual matrix, and one must not assume that the deal which was ultimately made satisfied that party's desire. Here, there is more to it. Island was seeking to put together a collection of a strictly limited class of rights which it hoped would be as complete as possible, and CM] was in a nearly unique position to profit from satisfying that desire. So it made sense for Island to buy everything CMI could offer in the way of Marley compositions, and for CMI to sell the same. It would have made much less sense for Island to buy only part of what CMI had or might have: from Island's perspective its catalogue would be unnecessarily incomplete, and from CMI's perspective the residue would be unlikely to be as valuable to anyone else.

Finally, I should mention that one of the Works is, as I have said above "No Woman No Cry". It was pan of the factual matrix that this was a very well known song and one of Bob Marley's most famous recordings, as well as very commercially successful. The specific importance of No Woman No Cry faded a little during the trial because it initially formed the centre piece of an argument, later abandoned by Mr Cuddigan, about the relative

In meeting Mr Cuddigan's arguments, Mr Mill also drew my attention to clauses I. 1 (e) and 1.2 dealing with the definition of "Accounts Receivable".

For the Claimants, Mr Cuddigan argues that clause 1.8 includes the compositions in Schedule 2 and by way of "sweep up" unknown songs written or recorded by Bob Marley and owned by CMI but not appearing in Schedule 2. It is by reference to sweeping up unknown songs that Mr Cuddigan seeks to avoid what would obviously be the very difficult position of arguing that clause 1.8 is in fact limited to the compositions in Schedule 2. He contends that songs the subject of the Misattribution Ploy were not included in clause 1.8 and invites me to decide that the parties so agreed.

For the Defendant, Mr Mill argues that clause 1.8 includes the compositions in Schedule 2 and any other songs in fact written or recorded by Bob Marley and in fact owned by CMI, whether or not known or unknown, and whether their attribution was accurate or inaccurate.

Mr Cuddigan advanced 6 main points in support of his approach. The numbering of them changed a little during the trial owing to one of the points being split into two and the pragmatic abandonment of a point based on price which I will mention below. In closing, Mr Cuddigan provided a helpful checklist whose numbering I will use below.

Mr Cuddigan's point 1 was referred to as the "elephant in the conference room" and asks rhetorically why No Woman No Cry (as the epitome of the Works, and the most famous and valuable of them) is not mentioned in the March 1992 Agreement,

Point 2 relies on the fact that it was common ground that there was still a dispute about the songs including songs which had been the subject of the Misattribution Ploy (and hence the Works), but that there was no language in the March 1992 Agreement to resolve the dispute. This point of course relied on the possibility of CMT reintroducing the matters the subject of the New York Action in some forum with a more generous limitation period, or the matter occun•ing in some other context where the time which had passed was not a problem.

Under point 2, Mr Cuddigan also argued that the factual matrix indicated a deliberate choice to avoid the issue (whereas by contrast, he argues, the New York counterclaim is expressly referenced in Schedule 12).

Under point 4 the Claimant asserts that under the warranty provisions of the March 1992 Agreement there was a natural "home" for the Works in

On pomt 2, he disputed that there was a decision, either in fact or in the terms of the agreement, not to address the misattributed songs including the Works. He said that the New York claim was defunct while the counterclaim still existed and this accounted for the latter and not the fonner being reflected in the March 1992 Agreement.

On point 3, he argued that outstanding royalties would indeed pass to Island along with the copyrights in the works by virtue of clauses 1.2 (Accounts Receivable) or 1.22 (which passed to Island the benefit of the 1973 publishing agreement). So, he said, there was no inconsistency.

On point 5 he argued that there would neither be additional Restrictions nor an additional Encumbrance within the meaning of the March 1992 Agreement were his argument on the transfer of the Works to be correct. He said that nothing proposed by Mr Cuddigan would amount to a contractual Restriction preventing exploitation of the Works (in particular the songwriter agreements would not have been thought or expected to be exclusive and there is no evidence that they were), and that the New York claim did not constitute an Encumbrance either.

On point 6 he submitted that it added nothing to the earlier pomts.

I have no hesitation in rejecting Mr Cuddigan's arguments, tenacious and imaginative though they were. I shall deal with points 1, 2 and 6 together since they are related and are the ones which go to the whole structure of

What points l, 2 and 6 have in common is that they assert an agreement between CMI and Island either not to address songs the subject of the Misattribution Ploy, or to treat them as not belonging to CMI even if they did in fact so belong, but only for the purposes of the March 1992 Agreement. But such an agreement is simply nowhere to be found in the language used. That is why I said in dealing with the law that Mr Mill was right to direct my attention to the basic principles in Chitty. My task is not to divine what I think from the circumstances the parties are most likely to have agreed and then bend the language to that; it is to interpret the language they chose.

For similar reasons, I think Mr Cuddigan's approach is circular. It begins by asserting that the March 1992 Agreement did not cater for No Woman No Cry or the Works generally. But that is the very thing I have to decide. The agreement does not name No Woman No Cry, but that is a different matter. Looking to the language it seems to me very firmly that No Woman No Cry was catered for by means of the general terms in clause 1.8 including in Compositions all that CMI owned that was written or recorded by Bob Marley,

In any event, I reject the factual premise of the underlying argument since I think it would have made no sense for the parties to agree not to include songs the subject of the Misattribution Ploy. Island wanted to buy everything it could and CMI's best opportunity to maximise its potential claim over the Misatfribution Ploy was with Island. It would have made absolutely no commercial sense for the Works to be in a position of uncertainty with Island having an unnecessarily incomplete catalogue of uncertain scope and CMI retaining the rump of an old claim. For the

In my view the fact that the New York counterclaim is mentioned while the claim is not is easily accounted for by the fact that the former was still in existence while the latter was not. As a matter of practical reality, I think it is quite understandable that the combined effect of the 1988 dismissal of the claim in New York, the fact that the estate was registered as the owner of the copyrights in the Works, and the 1988 Agreement was that the parties treated the Works and compositions in the same category as belonging to the Estate and therefore in all likelihood about to be transferred to Island once the 1988 Agreement was implemented, so that all that was needed out of an abundance of caution was the very general sweep up of clause 1.8.

I would also reject the Claimants' argument on the basis that its ultimate conclusion fits so very poorly with the language of -clause 1.8. It will be recalled that the Claimants accept that clause L8 includes a sweep up, but say that the effect of it is only to cover "lost" songs. There is nothing at all in the language of clause to suppolt this approach in my view. On the contrary clause 1.8 is conspicuously sweeping and general, seeking to catch all compositions written or performed by Bob Marley almost to the point of redundant repetition (I have m mind the last sentence in particular).

On point 3 1 strongly prefer Island's arguments. If there were accrued royalties then on a natural and sensible reading of clauses 1.2 and/or 1.22 they were also assigned to Island. I return to clause 1.22 below.

Point 4 is the one area where I think the Claimants' arguments are somewhat realistic. It would, it seems to me, have been natural for the Works to be acknowledged and included in one of the categories (Schedule 8A or 8B) where CMI's warranties were limited or excluded. However, I think the fact that they were not may also be explained as a result of the parties assuming that such compositions were already in all likelihood in the hands of the Estate (see above). I also think that Mr Mill has a point that the scope of a warranty cannot be used without more to infer exactly what was transferred. Finally, I think that this is a point of very modest weight compared with the other factors at play, and really while it is consistent with the end point of Mr Cuddigan's arguments, it does not drive one in that direction.

On point 5 1 again prefer Island's arguments. I do not see why a claim which CMI had made against others would be regarded as an Encumbrance on the Acquired Assets — the claim is in the wrong direction. The New York counterclaim is quite different because it was a claim against CMI and so it is addressed in the March 1992 Agreement. I cannot see how songwriter agreements with the misattributed authors would be Restrictions either, since there is no evidence or reason to believe they were exclusive. Non-exclusive songwriter agreements were specifically excluded from the scope of Restrictions.

I therefore find for Island on the main issue. The Claimants do not own the copyrights in the Works.

There are t-wo matters I should tidy up.

First, I must deal with clause 1.22. This has a part to play in the main argument as I have said above. In addition, it was advanced as a separate and free-standing defence because Mr Mill argued that it conveyed to Island the benefit of the 1973 publishing agreement, including "all music publishing rights" pursuant to it. Since on the Claimants' argument the

This point was unconventionally argued in that Mr Mill initially (but wrongly) accepted that it was not pleaded and later corrected himself to say that it was (which Mr Cuddigan then accepted). Despite this unusual tum of events I think I have all the materials which I need to decide the point and I consider that Island is clearly correct about it. It would have made commercial sense for this valuable Marley-related asset of CMI to be included in the overall sale to Island, and it fits with the natural meamng of the language.

Second, I think it is right very briefly to record my views about the Claimants' arguments based on price. Mr Cuddigan very sensibly dropped the point following the evidence but it suffused the opening skeleton argument for the Claimants, and parts of the written and oral evidence. So understanding the materials in the case may be assisted if I explain the issue.

The evidence was against this argument. First, the 1988 Agreement included many other matters on top of the compositions conveyed — for example the rights to use Bob Marley's name and likeness so as to make it impossible to attribute a value to No Woman No Cry. Second, the March 1992 Agreement took the value of compositions as part of the negotiating background, but no more than that. The overall amount paid was simply haggled over; it was not a calculation. Third, both the 1988 and March

In any event and leaving the evidence aside, it is perfectly possible that the

This issue does not arise because of my finding on issue 1. For reasons which will appear shortly J decline to decide aspects of it. In my view I should nonetheless make factual findings in case my decision on issue 1 is overturned on appeaL

For the purposes of this part of my judgment I must assume that my decision on issue 1 is wrong.

The Claimants assert that a claim in restitution lies in circumstances such as the present where royalties properly owing by X (the copyright collecting body) to C have been paid to D instead. They rely by analogy on Fisher v. Brooker.

In Fisher v. Brooker the claim failed because the claimant had stood by for many years without objection while the defendant received royalties from the collecting societies. See paragraphs 90 to 95 of the judgment of Blackburn J and in particular paragraphs 93 to 94. Mr Cuddigan argued that the facts of the present case are distinguishable and that the Claimants (and CMI before them) did not stand idly by, by reason of the initial assertion of CMI in the New York proceedings.

It was implicit in this approach by the present Claimants that had there not been prolonged non-assertion of his rights, Mr Fisher would have succeeded. Island's opening skeleton for trial rather followed this line, by emphasising what it said was a close factual analogy between the present case and Fisher v. Brooker. However, in his oral submissions Mr Mill

Mr Mill was undoubtedly entitled to argue this on the pleadings, and I think he is right to say that Blackburn J in Fisher v. Brooker did not find that there was a good claim in restitution but for Mr Fisher's inaction, At the start of paragraph 94 Blackburn J said that he had not been shown any authority supporting the existence of a claim, before going on, as I see it, to say that had there potentially been one it would have failed for lack of any overall injustice to Mr Fisher because of his inaction (see paragraph 95).

However, although Mr Mill was entitled to take the point, the consequence of the way the trial unfolded was that the argument on the law was not as complete as it might have been. This, taken with the other matters I am coming to, makes me reluctant to make any finding on the law.

Mr Cuddigan responded by arguing that the Restatement is not intended to be absolutely complete but only to identify where claims for unjust enrichment have already been recognised in English law, and by pointing out that this is a developing area of law. In my view he is right about both,

Mr Cuddigan also drew my attention to Goff & Jones' The Law of Unjust Enrichment (8^th Ed.). At 6-52ff under the heading "Interceptive Subtractions" the authors refer to the C/D/X situation. At 6-56 they suggest that cases of this kind can be explained and justified if the payment by X to D is effective without more to discharge X's liability to C (which is not the present case), or "less clearly" where the law affords C a right to elect to treat the payment by X to D as an act discharging X' s debt to C. No authority is cited for the second, "less clear" situation. Mr Cuddigan sought to bring the Claimants within this second situation by saying that his clients would undertake to the Court not to pursue the collecting societies if successful against Island.

I very much doubt if this is the kind of election the authors had in mind, and Mr Mill submitted that it was not, He also pointed out that in 6-57 the authors identify that in cases of "interceptive subtraction" it is normally the fact that C is unaware of the diversion to D that justifies restitution, and such does not apply here where it is obvious that the Claimants were fully aware of what was going on from before the May 2008 Agreement under which they claim to have derived their rights.

My view is that the Claimants' claim in restitution, if it exists at all, is right at the fringes of a developing part of the law and I do not think it would be right or useful to make a decision about the boundaries of such a claim on the basis of the somewhat incomplete argument I have received, in circumstances where I have already dismissed the Claimants' claim on conventional grounds.

However, I believe I should express my view of the facts. There are tvvo things to say here.

First, I reject the Claimants' argument that Island>s enrichment is unjust based on the original assertion of CMI's claim in New York. That claim

Second, even on the assumption that I am wrong about the interpretation of the March 1992 Agreement, I believe that Island had grounds for a reasonable, even if mistaken, belief that it had acquired both ends of the dispute over works the subject of the Misattribution Ploy, and had expended significant amounts of money to do so.

Given my findings of fact above, it seems to me that there is no material distinction between the present case and Fisher v. Brooker, on the assumption which I must still apply, that I am wrong about ownership of copyright in the Works. In each case there was a long delay on the part of the copyright owner in asserting its rights, during which time it was aware that the copyright collecting societies were paying royalties to the defendant.

I therefore conclude that: