Copyright - Smith v Newman

Authors Ben Sutherland Beyond My Ken Licence CC BY-SA 2.0 Source Wikimedia Commons 

 

Jane Lambert

Chancery Division (Mr Justice Zacaroli) Smith v Dryden and others [2021] EWHC 2277 (11 Aug 2021)

This was a claim by Kelly-Marie Smith against Kesi Dryden and others for copyright infringement. The claimant wrote the words and music for a song called Can You Tell Me.  She claimed that copyright subsisted in those works and that those copyrights had been infringed by the performance, recording and publication of the song Waiting All Night.  The song had been written by James Newman and recorded by the band Rudimental.  The action came on for trial before Mr Justice Zacaroli between 20 and 26 July 2021. At para [86] of his judgment in Smith v Dryden and others [2021] EWHC 2277, the learned judge dismissed the claim.

The judge referred to s.1 (1) and s.3 (1) of the Copyright, Designs and Patents Act 1988. He also cited para [33] of Judge Birss QC's judgment in Mitchell v British Broadcasting Corporation (BBC) [2011] EWPCC 42 (21 Dec 2011):

“[t]he defendant’s work must be causally connected to the work of the original author. If it is an independent work, then, though identical in every way, there is no infringement.”

Mr Justice Zacatoli directed himself that 

"in order to establish infringement, it is not enough to show that the lyrics and melody of the respective choruses of Can You Tell Me and Waiting All Night are materially similar or even the same. It is necessary to demonstrate actual copying of the copyrighted work."

At para [30] of his judgment, his lordship considered the similarities between the claimant's song and the defendants' and at para [31] the differences. Although he accepted that in general, the inference to be drawn from similarities strengthens as coincidences mount and that in many cases there would be a very strong inference of copying if the same lyrics to the same melody appear in both songs, there were important features of this case which significantly diminished the strength of that point. First, so far as the lyrics are concerned, the judge did not find it surprising that two people writing a popular song could independently alight on the phrase “tell me that you need me”.as it is a commonplace expression. Secondly, given the genre of music involved, he did not think it surprising that the words were set to similar melodies. He considered that there was no particularly high degree of coincidence in two composers, writing in the genre of either song in issue in this case, independently setting “tell me that you need me” to a melody similar to that found in Can You Tell Me.

The judge remarked that in the case of a well-known song that receives a lot of airplay, it will be easier to infer that the composer of an allegedly infringing song must have heard it. That was not the case here. The claimant's song had never been released commercially. It had appeared only in a video on social media sites belonging to the claimant and to the director of the video.  That video contained an interview with the claimant interspersed with performances of some of her songs.  

There was no direct evidence that Mr Newman had ever heard Can You Tell Me. The claimant had to rely on inferences to be drawn from what the claimant's counsel called  “overlapping circles” between Ms Smith and Mr Newman.   The strongest of those inferences was that the claimant had had dealings with the third defendant, Imir Izadkhah, a member of Rudimental.  He had met the claimant in 2010, been sent examples of her work, worked on some of her songs and expressed enthusiasm for them. However, those sings did not include Can You Tell Me.  It was possible that Mr Izadkhah had heard the song on one of the social media sites but unlikely.  It was even more unlikely that Mr Izadkhah drew the song to Mr Newman's attention. They would have had to listen to 12 minutes of the promotional video before reaching Can You Tell Me.  Mr  Izadkhah could only have told Mr Newman about the video many years after it had first appeared because Mr Izadkhah and Mr Newman did not know each other until that time. The learned judge did not find anything in the remainder of the claimant’s case as to the likelihood of Mr Newman having had access to Can You Tell Me at all persuasive.

Mr Justice Zacaroli noted at para [64] of his judgment that this case was unusual in that there was a contemporaneous recording of Mr Newman’s creative process in composing Waiting All Night.  This was a voice memo made by Mr Newman on his iPhone in June 2012, recording his informal first “writing” session for Waiting All Night.   His lordship described this evidence as of critical importance at para [25] of his judgment.

The learned judge summarized the reasons for his judgment at para [85]:

"(1) While there are objective similarities between the choruses of both songs, there are differences which - in the context of a simple melody which spans only three different tones - are not insignificant, and it is plausible in my view that two persons trying to write a hit song in the genre of Waiting All Night would come up with the lyric “tell me that you need me” and would set it to music in a way that is similar to Can You Tell Me;
(2) On the basis of all the evidence I have seen and heard it is unlikely that Mr Newman had access to Can You Tell Me. It was never produced commercially, so it is impossible that Mr Newman would have heard it in passing, for example being played in the background on a radio. Although the 2007 Video was posted to two social media sites, and made available in 2007 to some people in the music industry, the claimant’s case that Mr Newman would have accessed the 2007 Video is extremely weak and involves too many tenuous links;
(3) A close analysis of the Voice Memo provides strong support for the conclusion that Mr Newman came up spontaneously and independently with the allegedly offending lyrics and melody in the course of trying out various ideas."

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