Cabel Stephenson v Doreen Hibbert, Cressida Rattigan (in her capacity as named executrix in the Estate Frederick “Toots” Hibbert), Leba Thomas (in her capacity as named executrix in the Estate Frederick “Toots” Hibbert)

• Jurisdiction: Jamaica
• Judge: Stephane Jackson-Haisley J
• Judgment Date: 01 June 2022
• Year: 2022
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. SU2021CV00312

BETWEEN

Cabel Stephenson

Claimant

and

Doreen Hibbert

1 ^st Defendant

Cressida Rattigan (In her capacity as named executrix in the Estate Frederick “Toots” Hibbert)

2 ^nd Defendant

Leba Thomas (In her capacity as named executrix in the Estate Frederick “Toots” Hibbert)

3 ^rd Defendant

[2022] JMSC Civ. 65

CLAIM NO. SU2021CV00312

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Tort of detinue - Tort of conversion - Unlawful detention of samsung SSD hard drive — Recovery of possession - Delivery up - Intellectual Property Rights- Sections 2(1), 7, 9, 22, 23 and 28 of the Copyright Act - Authorship and ownership of copyright — Joint authorship and ownership- Musical works -Sound recordings - Executive producer of sound recordings -Sufficient degree of originality — Whether estate of deceased has interest in right to sound recordings - Measure of damages

IN CHAMBERS (VIDEO LINK)

Mr. Keith Bishop and Ms. Roxanne Bailey instructed by Bishop and Partners, Attorneys-at-Law for the Claimant

Mr. Ian G. Wilkinson QC and Mr. Jhawn G. Graham instructed by Wilkinson Law, Attorneys-at-Law for the first and third Defendants

Ms. Jacqueline Cummings and Mr. Matthew Palmer instructed by Archer, Cummings and Company, Attorneys-at-Law for the second Defendant

Stephane Jackson-Haisley J

INTRODUCTION

“Right to imitate: Aristotle in Ars Poetica in Latin, written in about 335 BCE, already recognized that we all learn by imitation. Not all imitation is unlawful. On the contrary, imitation may be said to be the essence of life. From the cradle to the grave man imitates his fellow-men in speech and song, habits, fashions and fads. Imitation is also, therefore, legitimate in business, up to a point. IP rights limit the right to imitate in a particular manner in the public interest for a limited period of time. 1

1 In a country such as this where music is at the backbone of our cultural landscape, musical creations take on pre-eminence when it comes to intellectual property. Such works must be protected so that the creator, author or owner of the intellectual property gets the full advantage of his/her/its work and that the benefit does not go to someone who played no part in the development of the intellectual property. In the music industry intellectual property takes on different forms ranging from sound recordings, to lyrics to the musical work itself.

2 The issues raised in this Claim surround the Torts of detinue and conversion and the available remedies for breach and have to do with the protection of intellectual property rights and the rights associated with authorship and/ownership of different forms of musical creations.

THE PARTIES

3 The Claimant Cabel Stephenson is a music producer, booking agent and road manager. He manages the musical affairs of renowned musicians which included the musical icon Frederick “Toots” Hibbert (now deceased) and which still includes the artist Andrew Adrian Brown performing as Droop Lion (hereafter Droop Lion). The Claimant alleges that in early 2020 he commenced the process of recording material for the compilation and release of an album by Droop Lion. Mr. Stephenson indicated that he

did this at the studio owned and operated by Mr. Hibbert. The studio is dubbed the D&F Music Inc. recording studio a.k.a. the Reggae Centre and is located at the home of the deceased 32 Edinburgh Avenue, Kingston 10

4 Mrs. Doreen Hibbert is the first Defendant herein. She is the widow of Mr. Hibbert and surviving joint tenant of property situated at 32 Edinburgh Avenue, Kingston 10 in the parish of St. Andrew. Mr. Hibbert was a Grammy-Award winning Jamaican international recording artiste and entertainer who was the lead vocalist for the reggae, singing group, Toots and the Maytals. His performing career around the world spanned six decades up to August 2020, when he became ill. On September 11, 2020, he died at the age of seventy-seven years old. Mrs Hibbert is a businesswoman and the director of D&F Music Inc. a company incorporated by Mr. Hibbert. The company is based in Florida, United States of America and handles a plethora of business activities carried out by the deceased and his business partner, Mrs. Hibbert who engages in, among other things, matters related to the entertainment industry, artist management and before Mr. Hibbert's death she engaged in tour arrangements for him and his singing group the Maytals.

5 Ms. Cressida Rattigan is the second Defendant and is the granddaughter of Mr. Hibbert. She is joined in this claim in her capacity as named executrix in the estate of the deceased and also resides at 32 Edinburgh Avenue, Kingston 10 in the parish of St. Andrew.

6 Mrs. Leba Hibbert-Thomas is the third Defendant and the daughter of Mr. Hibbert. She is joined in this claim in her capacity as the other named executrix in the estate of the deceased. Mrs. Hibbert-Thomas is also the daughter of Mrs. Doreen Hibbert. She is a singer, entertainer, writer and musician and also resides at 32 Edinburgh Avenue, Kingston 10 in the parish of St. Andrew.

SUMMARY OF THE CLAIMANT's CASE

7 By way of Fixed Date Claim Form and Particulars of Claim, Mr. Cabel Stephenson claimed he is the owner of the SAMSUNG SSD Hard Drive (‘the hard drive’), which is currently in the possession and custody of D&F Music Inc., (also called ‘the Reggae Centre’) a recording studio situated and operated at 32 Edinburgh Avenue, Kingston 10 in the parish of St. Andrew. Mr. Stephenson sought against the first, second and third Defendants, recovery of possession (delivery to him) of said hard drive, which contains musical works in which he has proprietary, beneficial and financial interest. In his Fixed Date Claim Form he claims Damages for the loss suffered as a result of the unreasonable detention of his personal property, being the hard drive. In his Particulars of Claim, he expressed that he has expended in excess of UNITED STATES EIGHTY- ONE THOUSAND DOLLARS (USD$81,000.00) on the production of the album and he stands to lose all that unless he is able to enter into an arrangement for the commercialization of the album. He claims Costs and any other Order this Honourable Court deems fit.

8 Mr. Stephenson alleged that he purchased the said hard drive in late 2019 at a Best Buy store in Colorado, U.S.A. for USD$169.99. Sometime in May 2020, after completion of recordings done in respect of the Droop Lion album, these recordings were transferred from the Reggae Centre studio board to the hard drive. The hard drive is now the subject of this intellectual property dispute, as well as the musical works and sound recordings contained in the hard drive that Mr. Stephenson claimed to have ownership and intellectual property rights to. The hard drive was left at the studio in the care and control of the deceased about three months before the deceased became ill. Further, that the hard drive, has since been and is now being detained, and kept in the possession of the Defendants unjustifiably and illegally, as Mr. Stephenson, who owns the hard drive and contents stored on said hard drive has requested of the Defendants delivery up of said hard drive but to no avail. It is Mr. Stephenson's contention that as he was the executive producer of the Droop Lion Album Project, he is the owner of the hard drive.

9 Droop Lion claims that he is an artist and writer and asserted that he has been working for Mr. Stephenson since 2010. At that time, both of them worked together under a “loose arrangement” to produce and release some songs Droop Lion had written prior to meeting Mr. Stephenson. By way of an “Artist Management Contract”, both Droop Lion and Mr. Stephenson had entered into a contract to formalize their working relationship. Subsequent to that contract, all the musical affairs of Droop Lion have been handled by Mr. Stephenson or entities under his control as it relates to management, booking and production of his works.

10 The Claimant accepts that a significant role was played by the deceased as a co-producer in the production of the album but that he was not the only co-producer as Mr. Nigel Burrell the studio engineer was also co-producer. As co-producer, it is accepted that the deceased would prepare demos for Droop Lion to use as an indication and direction for how he was to sing the songs as the artist on the album but this did not make the deceased an executive producer of the album. The main issue relates to the element of possession and/or ownership of the hard drive and the sound recordings thereon created in furtherance of an album project by Droop Lion, to which the deceased made a significant contribution creatively, whether as a musician, executive producer, co-producer, composer or writer. Mr. Stephenson claims to have contributed to the album project as artist manager, executive engineer and executive producer, therefore claiming legal ownership not only to the physical hard drive but also some of its content. As it relates to the album project in dispute, there are thirteen songs/sound recordings that are considered “new” sound recordings sang by the artist, Droop Lion. The album project containing these new songs is yet to be released and commercialization is incomplete and it needs to be refined prior to its release. As the executive producer of the Droop Lion album project, the Claimant asserts that he was the one who provided the financial investment and financial backing for the project.

11 It is also the Claimant's assertion that the Defendants have provided no reasonable justification for withholding the hard drive from him and that this has prevented the completion of the said album. The reasons the Defendants have provided are insufficient since separate copyright owners’ interests in copyright can co-exist, and these copyright owners are generally entitled to recognition. Their reasons include:

Therefore, if there are any rights of the deceased as a...