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Music producer did not infringe copyright with work on Marmite TV commercial

12 January 2010

A music producer has avoided potentially crippling legal costs after winning a battle over a recording used in TV advertisements for Marmite.

Peter Lawlor, managing director of Water Music Productions, argued that the claim against him, relating to the use made of Low Rider by War, was unjustified.

The High Court heard that TV commercials for Marmite broadcast between 1994 and 2003 featured the original backing for Low Rider with Marmite-related lyrics.

Giving judgment in Far Out Productions v Unilever and others (Claim No. HC05C02145), Mr Strauss QC, sitting as a deputy High Court judge, said the claimant alleged that Water Music Productions deliberately infringed its copyright and concealed the infringement.

He said that while he did not make any finding on the claim itself, he regarded the case against Water Music as “wholly implausible” and had “little or no doubt that, if it had not been discontinued, it would have failed and I think it probable that the claimant appreciated this when it discontinued”.

Judge Strauss said that when it was pitching to Unilever for the contract to advertise Marmite, the advertising agency BMP DDB had the idea of using part of the Low Rider composition with the words “My mate Marmite” as the lyrics.

The agency, the third defendant in the action, commissioned Water Music to produce a short cartoon with instrumental music from the song.

Unilever then asked BMP to produce TV adverts along the same lines, which were broadcast between 1994 and 2003, though some had different lyrics including “I hate Marmite” and some had no lyric at all.

Judge Strauss said that although Water Music was commissioned to re-record the music, the broadcast used “substantial parts” of the original recording and no licence was obtained from the claimant.

The claimant notified BMP of its claim at the end of 2003, which was settled in October 2009. The advertising agency agreed to pay Far Out Productions £400,000 plus £65,000 towards its costs. Far Out abandoned its claim for copyright infringement against Water Music.

Judge Strauss dismissed Far Out’s claim for costs against the music production company. He said the claimant had started proceedings which were unlikely to succeed and there was no sensible reason to bring them as the defendant was unlikely to have substantial assets.

“The claimant’s grossly excessive demands, and unreasonable refusal to negotiate sensibly with the third defendant, made an earlier settlement impossible,” he said.

He awarded indemnity costs in favour of Water Music.

Jonathan Coad, head of litigation at Swan Turton, acted for Water Music.

He said that because proceedings were issued outside the limitation period, the onus was on the claimant to prove deliberate infringement under section 32 of the Limitation Act.

Coad said that where an advertising agency commissioned a music production company to use copyright material, the production company was entitled to presume it had been cleared.

“We provided expert evidence to corroborate that,” he said. “The judge has gone as far as possible in exonerating my client.

“There was absolutely no point at all in the claimant suing us. Everything we did took place before the limitation period and there was no reason to think that we did it deliberately.”

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