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Is there a blurred line between copyright infringement and simply taking inspiration from a piece of work?3rd September 2021 Intellectual Property
As a singer and music lover, I have always taken inspiration from the works of famous artists. However, since working on copyright infringement cases, I am slowly becoming aware of the thin line between taking inspiration from an existing song or indeed any work, and becoming embroiled in a copyright dispute case.
Over the years, there have been many high profile music related copyright infringement cases. Who can forget Vanilla Ice’s rendition of ‘Ice Ice Baby’ which imitates Queen and David Bowie's infamous guitar riff in ‘Under Pressure’ as the bassline? Both Queen's and David Bowie’s representative issued proceedings against Vanilla Ice aka Robert Matthew Van Winkle. The case was ultimately settled out of court with Vanilla Ice compensating the representatives of Queen and David Bowie with approximately £2.8 million along with co-crediting the artists. In 2015, the British singer Sam Smith settled a copyright dispute with the late American legend Tom Petty in relation to Smith’s alleged use of Petty’s classic hit ‘I Won’t Back Down’ in Smith’s song ‘Stay With Me.’ The dispute ended with songwriters Tom Petty and Jeff Lyne splitting a 25% share of song writing royalties of Smith's song and being credited as co-writers of the song.
Smith v Dryden
There is no doubt that copyright infringement is rife in many industries. What are the legal components considered by the courts when assessing copyright infringement cases? To answer this question, I will explore a recent case from August 2021 Smith v Dryden and others  EWHC 2277 (IPEC).
By way of background, proceedings were issued by the singer Kelly Marie Smith who alleged that the British bass and drum band Rudimental had copied her pop ballad ‘Can You Tell Me’ which she wrote in 2006, albeit the song was never released. Ms Smith issued proceedings at the Intellectual Property and Enterprise Court (IPEC). The IPEC, for context, is an alternative venue to the High Court for bringing legal actions involving intellectual property matters.
Who are the defendants?
Considering there are 9 defendants to contend with, it is worth understanding who each of them are, if only for clarity purposes.
- Kesi Dryden
- Piers Sean Aggett
- Amir Izadkhah
- James Richard Newman
- Edward Jonathan Harris
Defendants 1 to 5 are the composer and lyricists of the song ‘Waiting All Night’ which is the subject of copyright infringement.
- Sony/ATV Music Publishing (UK) Limited
- BMG Rights Management (UK) Limited
- Bucks Music Group Limited
Defendants 6 to 8 are music publishing companies which have commercially exploited Waiting All Night.
- Christopher Robinson
Defendant 9 is played acoustic guitar on Can You Tell Me with Ms Smith and claims that he co-wrote the song with her in 2007. He was joined to these proceedings by order of Chief Master Marsh on 7 July 2020, in order to assert a counterclaim to a 50% share in the copyright of the song, and to join in the claim for breach of copyright against the other defendants.
What is the basic law required to establish copyright infringement?
To establish infringement, it is not enough to show that the lyrics and melody of songs are materially similar or even the same; the vital point is for the claimant to demonstrate actual copying of the copyrighted work. In other words, the 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.
Zacaroli J’s findings
Ultimately, Zacarolii J dismissed Ms Smith’s claims of copyright infringement. Some interesting points noted in the judgement are as follows:
Melody and lyrics
- Zacaroli J found the phrase used in the Defendants’ song, the phrase “tell me that you need me” to be a commonplace expression. The Defendants succeeded in convincing the judge that established artists such as Bruce Springsteen and Michael Jackson used this phrase in their published songs. The judge concluded by stating that “there is nothing ground-breaking or particularly original in the phrase “tell me that you need me”.
- Given the genre of music involved, the judge didn’t think it is surprising that the words are set to similar melodies.
- Whereas there would be a very high degree of coincidence if two composers both came up with the same highly unusual words to a melody spanning most of the notes in the scale, Zacaroli J did not think this was the case here. The judge noted that “there is 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.”
Issue of access
- Zacaroli J did not find any evidence that the fourth Defendant, Mr Newman, who was the original writer of the disputed phrase had access to the Claimant’s song, which had never been commercially released. In particular, the judge found the Claimant’s case on access through the video sharing platform, ‘Vimeo’, to be “extremely weak” and to involve “too many tenuous links.”
- The judge concluded by stating “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.”
How to avoid potential copyright pitfalls
While the case of Smith v Dryden primarily involves copyright in music, it nevertheless provides a useful guidance on what courts would consider to be an infringement of a copyright work. Below are some tips entities and individuals should bear in mind when making use of another’s work:
- Understand the concept of copyright and authorship. Copyright law protects any original creation and grants the copyright owner exclusive control over the copyright work. Copyright, however, does not protect an expression of ideas and facts.
- If you are aware of the owner of a copyright work, it is important to seek their permission or come to a contractual agreement as to whether you can use their work, whichever is more appropriate. Copyright infringement essentially boils down to the unauthorised use of an author’s work and as such, obtaining permission may be the best way to avoid an infringement suit even if this means paying some royalty at the outset.
- If entering into a license agreement, conduct due diligence checks to ensure that the licensor has the requisite authority to grant license of the copyright work.
- Communication to a third party (such as the public) without prior permission of the author constitutes as copyright infringement and so, it is important to refrain from distributing materials to third parties without seeking the copyright owner’s permission.
- Where possible credit the original author. This would disseminate any ill feelings and reduce the scope of a lawsuit.
Copyright law is a complex area with evolving case law through the years. While there is often a blurred line as to what constitutes copyright infringement, the best option would be to err on the side of caution and obtain legal assistance if unsure.