Soca artiste Sean Caruth has scored a major legal victory in his bid to hold the Tobago House of Assembly (THA) liable for the unauthorised use of his 2001 hit The Cook (Coal Pot) in a television commercial for its Blue Food Festival.
Delivering a judgment on Monday, appellate judges Gillian Lucky, Mira Dean-Armorer, and Vasheist Kokaram ruled that High Court Judge Frank Seepersad erred when he rejected Caruth’s copyright infringement case in July 2018.
Justice Dean-Armorer, who wrote the judgment, said, “We held that the trial judge was plainly wrong to have dismissed the appellant’s claim and the THA had infringed the neighbouring and moral rights of the appellant.”
As part of its decision, the appeal panel ordered over $200,000 in compensation for Caruth. In the lawsuit, Caruth alleged that the THA breached his rights in 2012 by using the song in an advertisement which featured pork.
Caruth contended that the THA improperly used a 39-second sample from the song in its television commercial, which was allegedly broadcast over 200 times during a 24-day period.
The THA alleged that Caruth was not allowed to bring the lawsuit as he (Caruth) had signed over the rights to his music when he entered into an agreement with the Copyright Music Organisation of T&T (COTT) in 1997.
It also noted that Caruth had performed at the festival a year after his song was first used in the advertising campaign for the annual event.
The Blue Food Festival is usually held in October.
In determining the claim, Justice Seepersad considered whether Caruth’s neighbouring and moral rights under the Copyright Act were infringed.
Neighbouring rights relate to public performances and the right to be identified as the producer or performer of a song. Moral rights deal with the ability of a creative artiste to protect the integrity and ownership of his/her work.
He found that Caruth surrendered his neighbouring rights when he signed the agreement with COTT.
Dealing with Caruth’s moral rights, Justice Seepersad noted that while Caruth complained that his music was being associated with a festival, which promotes the consumption of pork, he still chose to perform at the festival a year after his song was used in the marketing campaign.
After analysing the Deed of Assignment between Caruth and COTT and copyright legislation, Justice Dean-Armorer ruled that Caruth did not cede control of his neighbouring rights when he signed over his economic rights.
“The trial judge did not consider the Deed of Assignment in the context of the prevailing statutory provisions,” she said.
Dealing with Caruth’s moral rights, Justice Dean-Armorer noted that breaches did not only require offensive material being associated with Caruth’s music but occurred through the failure to cite the copyright holder’s name in the soundtracks that accompanied the advertisements.
In assessing the appropriate compensation for Caruth, the appeal panel noted that there was no evidence of loss suffered by him.
The panel ordered $100,000, which was based on figures quoted by Caruth’s lawyers, to settle the case before it went to trial. The judges also ordered $100,000 for Caruth’s hurt feelings, distress and outrage. The THA was also ordered to pay his legal costs for the lawsuit.
In a statement issued yesterday, attorney Nigel Trancoso, who led Caruth’s legal team in the appeal case, said that the matter would help define the application of copyright law locally.
“This judgment is a monumental step forward for artists in T&T and across the Caribbean,” Trancoso said.
“It reinforces the dignity, labour, and identity of creators, ensuring that their valuable contributions are not just commercially recognised but also personally respected.”
Caruth was also represented by David Carter and Donielle Jones. The THA was represented by Gregory Pantin and Fanta Punch.
