JACAP loses bid to appeal case against KFC for alleged infringement of copyright

The Jamaica Association of Composers Authors and Publishers (JACAP) will not be compensated for the millions of dollars being sought from Restaurants of Jamaica, trading as KFC, for alleged infringement of copyright.

Last week, the Court of Appeal refused an application by JACAP for permission to appeal against a ruling by Supreme Court Judge Dale Staple, who granted summary judgment in favour of KFC in November last year. The judge had refused JACAP’s application for leave to appeal, so the application was made in the Court of Appeal.

JACAP had argued that the judge fell into error in applying the law and evidence in the case and, therefore, JACAP should be given permission to appeal his decision. JACAP relied on the 2023 amendment to the Copyright Act and asked the court to accept that the law had changed.

Attorneys-at-law for KFC urged the court to refuse the application because there was no misunderstanding of the law or the evidence on the part of Staple. They submitted that the judge was correct in applying the law and, therefore, exercised his discretion correctly in granting the summary judgment. It was also argued that the applicant had no real chance of succeeding if permission to appeal was granted.

Attorney-at-law Philmore Scott, who represented KFC, explained that according to the Court of Appeal Rules, permission to appeal will only be granted where the appeal has a real chance of success. He referred to Rule 1.8(7), which states that “the general rule is that permission to appeal in civil cases will only be given if the court or the court below considers that an appeal will have a real chance of success”.

President of the Court of Appeal Justice Patrick Brooks, Justice Frank Williams, and Justice Evan Brown heard the application.

SEEKING AN INJUNCTION

JACAP had filed a claim in the Supreme Court seeking an injunction as well as licensing fees for the period 2017 to 2022 for restitution for unjust enrichment and damages for alleged infringement or a percentage of the profits earned for the period. The documents, which were filed in court, failed to cite any instances of breach by the defendant.

Staple allowed an amendment to the documents, and JACAP produced a document for a date in 2017.

In its amended particulars, JACAP had purported to identify the copyrighted works infringed by referring to an audit at one of the KFC’s branches for 24 hours on October 6, 2017.

However, the lawyers for KFC had argued that JACAP failed to prove the copyrighted musical work that allegedly had been infringed.

“Amazingly, despite the amendment, no other infringements were stated, pleaded, or supported. So on the face of it, the claimant is asserting one 24-hour breach in one year at one restaurant and wants to get six years’ worth of money,” Staple said in his judgment. The judge said then that the entire claim was founded upon an illegality and was unsustainable, therefore, the defendant was entitled to summary judgment.

The defendant, KFC, contended that it never entered into a licensing agreement with JACAP and denied the allegations. In applying for summary judgment, the defendant stated that the claim had no real prospect of success and Staple should throw out the case because the claimant had failed to prove the copyrighted musical work that it had infringed.

Attorney-at-law Jerio Scott, from the law firm Samuda Johnson, represented JACAP.

KFC was represented by attorneys-at-law Philmore Scott, Camille Scott, and Jerohma Crossbourne Omfroy from the law firm Philmore H. Scott and Associates.

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