From nul points to High Court victory: a reminder of the 'rudimental' principles of copyright infringement

For UK viewers of Eurovision this year, the worst moment was probably a tie between receiving the infamous 'nul points' (again….) and Amanda Holden's embarrassing grasp (or poor sense of humour) with foreign languages!

However, at least James Newman, performer and co-writer of the UK's entry, has now had victory on a different stage in light of the High Court dismissing a recent claim of copyright infringement against him and others.

This was in the case of Smith v Dryden and others [2021] EWHC 2277 (IPEC), where the claimant alleged that Mr Newman and the band Rudimental had infringed her copyright.

Background

The claimant, Ms Kelly Smith, alleged that the Rudimental track 'Waiting All Night' copied the lyrics and melody from her song 'Can You Tell Me'. Ms Smith brought a claim for copyright infringement against members of Rudimental, the composer and lyricists of the track and the production companies who exploited the track. During the proceedings, it transpired that the primary input on the elements covered by the allegations were written by Mr Newman so he became the sole focus of the allegations of copying. All of the individual defendants denied that they had ever heard 'Can You Tell Me'.

There was no question regarding subsistence of copyright in Ms Smith's track. The case focussed on the test for infringement and primarily the basic underlying principles that underpin all claims – (1) similarity i.e. there must be a sufficient objective similarity between the works and (2) derivation i.e. the copyright work must be the source from which the allegedly infringing work is derived. The judge considered the relevant factors in turn as set out below and concluded that Mr Newman had not copied any part of 'Can You Tell Me' in creating 'Waiting All Night'.

Similarity

Although the judge outlined various similarities between the lyrics and the melody in the two tracks and accepted that generally the "inferences to be drawn from similarities strengthens as coincidences mount", he thought there were features that diminished the strength of that argument on these facts:

• First, the primary words that were alleged to have been copied 'tell me that you need me" were commonplace; and
• Secondly, the melody of the chorus derived from the words and they were used in the same pattern as if they were spoken, so it naturally reflected the words themselves.

Therefore, the judge did not consider there to be a high degree of coincidence that two composers would independently use these same elements i.e. the words and the accompanying melody.

Availability of work

'Can You Tell Me' had not been made available commercially. Therefore, this was to be contrasted with a popular song that will have received a high degree of airplay so may have been heard inadvertently. Instead, Ms Smith had posted the track on her own MySpace sites in 2007 (12 minutes into a video that started with other interviews and snippets), on Vimeo in 2012, and her manager had circulated DVDs to some (unspecified) people within the music industry in 2007.

Access to the work by the defendants

The claimant's primary argument in terms of access was related to the 'overlapping circles' between the claimant and defendants. However, these links were all tenuous and speculative. The judge did not consider it likely that any of these potential links between individuals would have resulted in the defendants becoming aware of 'Can You Tell Me' prior to releasing 'Waiting All Night'.

The evolution of 'Waiting All Night'

A critical piece of evidence in these proceedings was a voice memo that Mr Newman had recorded as part of his development of the song 'Waiting All Night'. This showed that although Mr Newman started with some elements in his head, the lyrics and melody that were alleged to have been copied arose naturally out of a process of trial and error. The judge therefore concluded that Mr Newman had written 'Waiting All Night' independently.

Comment

There is no novel law in issue in this case and much of the media interest is due to the profile of the individuals involved rather than the legal principles. However, this case does provide a reminder of some good practical tips for authors of any type of creative work.

Mr Newman's voice memo was clearly important in assessing whether he wrote 'Waiting All Night' independently or by copying 'Can You Tell Me'. The more contemporaneous evidence that authors hold of this nature, the easier it will be for them to demonstrate their creative process. Voice memos are clearly a good tool for this, particularly if they are date stamped. However, other material such as physical and electronic notebooks may also support the position. In this case, the evidence was to demonstrate that the creative process did not involve copying, but it could be equally important when establishing a timeline, to evidence individual contributions to joint works, or to demonstrate subsistence of copyright in a situation where it may be challenged.

Also as a note to litigators, despite significant failings in the disclosure exercise, the judge did not consider that it undermined the credibility of the witnesses. The judge was critical of the failure to issue any interim applications to rectify the positon and instead only rely on it to attack witnesses in cross-examination.