Toots Hibbert Estate Loses Major Copyright Battle To The Reggae Legend’s Former Manager

The Toots Hibbert estate has lost a major copyright battle in the Supreme Court against producer-manager Cabel Stephenson regarding an album that the late ska and reggae singer had worked on, in the capacity of producer-musician, with Reggae artist Droop Lion before his death.

According to court documents obtained by DancehallMag, the case revolved around the authorship and ownership of the musical works associated with Droop Lion, and the unlawful detention of a hard drive containing said works.  The case also sought to establish whether the Toots Hibbert estate had an interest in the right to sound recordings in question, and dealt with the protection of intellectual property rights and the rights associated with authorship and ownership of different forms of musical creations.

Stephenson has hailed the ruling as a “landmark decision”.

“A landmark case has been established in terms of copyright law in terms of ownership of composition. We are getting in line with international standards. In my experience, we have been working with a lot of people overseas who have no confidence in our judicial system in terms of copyright and want us to sign contracts based on US law, UK law and French law or  have arbitration with international tribunals,” Stephenson told DancehallMag.

“This now proves we can rely on our courts in Jamaica to establish true ownership and give justified decisions in our courts,” he added.

The case was triggered by an issue that happened in the wake of Mr. Toots Hibbert’s death in September 2020, in which a hard drive, owned by Mr. Stephenson and which contained Droop Lion’s album, was seized by D&F Music Inc., a recording studio situated and operated at 32 Edinburgh Avenue, Kingston 10 in the parish of St. Andrew.

Attorney-at-law and Queen’s Counsel Ian Wilkinson, appearing on behalf of defendants Doreen Hibbert and Leba Thomas, argued that Toots Hibbert was the author of the lyrics for the songs on the album project and the executive producer, and as a result was the owner of the musical work and sound recordings.

Consequently, the lawyer argued that such musical work and sound recordings should fall under said deceased’s estate. Any exploitation of such intellectual property ought to be administered by the deceased’s personal representatives and not the claimant. Wilkinson contended that “if the claimant is allowed to exploit such intellectual property owned by the deceased, particularly before the deceased’s estate is administered this will gravely prejudice the deceased’s estate.”

The lawyer also contended that the deceased (Toots Hibbert) was the executive producer of the Droop Lion album project and as a result the owner of the germane sound recordings.

However, judge Stephane Jackson-Haisley disagreed with that assessment, ruling that Stephenson is the legal owner of the hard drive, master tapes, files and sound recordings on said hard drive.

The judge ruled that the second (Cressida Rattigan) and third Defendants (Leba Hibbert), in their capacities as named Executrices of the Last Will and Testament of Fredrick “Toots” Hibbert, are required to deliver to the Claimant the Samsung SSD hard drive owned by the claimant and containing musical works, in which he has a proprietary, beneficial and financial interest.

The issue of Damages is to proceed to an Assessment of Damages in Open Court. Mr. Stephenson claimed he spent US$81,000 to produce the album, court documents said.

The defendants were also ordered to pay the legal costs of the claimant.

“It seems to me that the parties came together with the Claimant as executive producer, Droop Lion as the main artist and the deceased as producer and others such as Nigel Burrell as producer and engineer to reflect a conglomeration of talent where they mutually understood their separate roles and responsibilities. It is clear from this that the musical works and the sound recordings on the hard drive do not all belong to the estate of the deceased and D & F Music,” the judge said in her ruling.

There is no documentary evidence before the Court to substantiate the claim that the deceased was paid for his contributions to the album or exactly what royalties would be paid to the estate, nor is there evidence that these alleged payments also represented full and final compensation for any or all of the deceased’s contributions, Jackson-Haisley further stated.

Further, Jackson-Haisley, ruled that “based on the totality of the evidence that was presented to the Court, there is undisputed proof that the claimant was the one who financed the album project and paid the producers, musicians and back up vocalists.”

The judge ruled that the hard drive, which contains musical works in which Stephenson has proprietary, beneficial and financial interest, be returned to him.

The judge pointed to the rights of a copyright owner which are provided for in section 9(1) of the Copyright Act and stipulates that the owner of the copyright in a work shall have the exclusive right to do or authorise other persons to do certain acts to include performing the work in public or in the case of a sound recording play the work in public.

Copyright authorship in musical works arises and/or is acquired once the person creates the work. Based on section 14(1) of the Copyright Act, the author of a literary, dramatic, musical or artistic protected work has the right to be identified as the author of the work.

Stephenson alleged 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.
Mr. Hibbert wrote songs such as ‘All is Well’, ‘Crazy Conscious’, ‘Poor People Story’, ‘Sitting on the Wall’, ‘Speak the Truth’, ‘Turn the Radio On’, ‘Vision’ and ‘Pay the Rent’ however it was Droop Lion who wrote ‘Money is God on Earth’.

Mr. Hibbert played as many as six or seven instruments on the Droop Lion Project.

Jackson-Haisley made an important point as it relates to the future copyright of the songs.

“If Droop Lion is claiming rights to these songs, he must prove that each of these re-recorded songs had a sufficient degree of originality and are not just straightforward covers of older works, in order to attract a separate copyright. This is further complicated by the fact that the deceased was involved in the creation of these re-recorded songs and would nevertheless still have rights in them,” the judge ruled.

“It is important to note that a work may be deemed to be original even if in its creation there was some infringement of copyright of an earlier work and that the test is whether its creation involved great skill and labour which is often referred to as the sweat of the brow test.”

Attorney-at-law Keith Bishop, who appeared for the claimant Cabel Stephenson, hailed the legal victory as one “based on evidence in the law”.

“The judge did an exceptionally good job at analyzing the evidence, and coming to what I think is the correct decision based on evidence under the law. She came to the right conclusion based on evidence in the law,” Bishop said.

“If there is no agreement between the parties , then we will set an open court hearing to assess damages and all this is subject to appeal but this is a good win at first instance.”

Stephenson thanked his expert legal team which also included Roxanne Bailey and Dianne Watson for their sterling work and brilliant expertise.