In September 2006, The Sunday Times issued a free CD (covermount) containing recordings of songs performed at the Royal Albert Hall (RAH) in 1969 by the Jimi Hendrix Experience. Experience Hendrix Llc, which asserted copyright in the recordings, became aware of the proposed covermount some days before it was due to be distributed with The Sunday Times and sought an undertaking that it would not be issued. Times Newspapers Ltd claimed to have a valid licence, acquired via Charly Acquisitions, to make and distribute the covermount and refused to give the undertaking.

Distribution of the covermount led to a delay, estimated to be 27 months, of the launch by Experience Hendrix of a film project. Experience Hendrix sought compensation for damage suffered on a worldwide basis as a result of the delay: Experience Hendrix Llc v Times Newspapers Ltd [2010] EWHC 1986 (Ch).

The judge held that “if there had been no infringing covermount, the earliest likely date for the release to the public of the film and accompanying CDs and DVDs would have been September 2007”. The judge stated that if the Claimants had proceeded with reasonable diligence to complete the film and sign up to a distributorship agreement to bring the project to its public launch, in the discharge of their duty to mitigate their losses, launch could have been achieved by September 2008, a delay of 12 months from the date on which the launch would have taken place, but for the dissemination of the covermount.

The judge rejected Times’ contention that if the suspension of the project was justified because of the distribution of the covermount, then that suspension should have been confined to the United Kingdom, finding that Experience Hendrix was not in any way to be considered the author of its own loss because it suspended the project worldwide and not just in the United Kingdom and that its damages were not to be reduced on that account. He held that there may not exist in some jurisdictions covered by the claims any rights equivalent to the UK rights on which Experience Hendrix based its claims in the United Kingdom. However, whether or not such overseas rights existed was immaterial to the recoverability in principle of the losses which Experience Hendrix said were caused by Times’ infringement of its UK protected assets.