[2005] EWHC 449 (Ch) [2005] E.C.D.R

[2006] E.M.L.R. 2 Page 1 [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript (Cite as: [2006] E.M.L.R. 2) to be regarded as the relevant work for copyright [2005] EWHC 449 (Ch) purposes. The claimant indicated that, if this was right, she would not seek to amend her claim by *21 Coffey v Warner/ Chappell Music Ltd pleading reliance on the song “Forever After” as a whole. High Court, Chancery Division H4 HELD, dismissing the claim: J. (Blackburne H5 1. It was not open to a claimant to pick and March 18, 20051 choose the elements of a work upon which he relied in order to make the question of whether a substan- Copyright; Musical works; Originality; Striking tial part had been copied more likely to be out; answered in his favour.IPC Media Ltd v Highbury Leisure Publishing Ltd [2004] EWHC 2985; [2005] H1 Copyright in a musical work—work alleged to F.S.R. 20 followed. be infringed was the combination of vocal characteristics in and around a single lyrical line of a H6 2. What the copyright work was in any given song—features claimed were not sufficiently separ- case was not governed by what the claimant chose able from the rest of the song as to constitute a mu- to say that it was. Rather, it was a matter for object- sical work in themselves—“performance character- ive determination by the court. *22 Coogi Australia istics” were not subject of copyright protec- Pty Ltd v Hydrosport International Pty Ltd (1998) tion—claim struck out. 41 I.P.R. 593 and Newspaper Licensing Agency Ltd v Marks & Spencer Plc [2001] UKHL 38; H2 The claimant singer/songwriter had written the [2002] R.P.C. 4; [2001] E.M.L.R. 43 referred to. lyrics and vocal melody for a song called “Forever After”, which was recorded with musical accom- H7 3. As a general proposition, circumstances paniment by another artist. She claimed that the re- could exist which would justify regarding a con- cording of “Forever After” included an original mu- stituent part of a larger entity as in itself a copyright sical work, which consisted of the combination of work, but that could be only where the part in ques- vocal expression, pitch contour and syncopation of tion could fairly be regarded as so separate from the or around the words “does it really matter” (“the material with which it was collocated as itself to Work”). The Work did not extend to the melody constitute a copyright work. In the current case it surrounding the words. She pleaded that the words was obvious that identifying a separate copyright “does it really matter” comprised the song's ‘lyrical work in this way was not possible. hook’. The claimant alleged that the copyright in the Work was infringed by the defendants' activities H8 4. The claim could not succeed and it was in relation to a song by Madonna called “Nothing struck out with costs under CPR Pt 3.4(2)(a). Really Matters”. Legislation referred to: H3 The defendants applied to strike out the claim, or for summary judgment, contending that the Work comprised no more than features of, or ex- tractions from, what properly and objectively was • CPR, Pts 3.4(2)(a), 18, 24.2(a)(i) © 2012 Thomson Reuters. [2006] E.M.L.R. 2 Page 2 [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript (Cite as: [2006] E.M.L.R. 2) Representation •PiersAcland,instructedbyFullagarBrooks,fortheclaimant. •ThomasMoody-Stuart,instructedbyRussells,forthedefendants. which was almost four years later. The particulars Blackburne J.: of claim have undergone amendment and re- amendment. The claim as now formulated is that 1Thisisthedefendants'applicationtostrikeout the recording of “Forever After” “ includes an ori- the claim against them on the ground that the re- ginal musical work comprisingthe combination of amended particulars of claim disclose no reason- vocal expression, pitch contour and syncopation of able grounds for bringing it (CPR (“CPR”) , Pt or *23 around the words ‘does it really matter’” 3.4(2)(a)), alternatively for summary judgment on (emphasis added). She refers to this as “the Work”. the basis that the claimant has no real prospect of She pleads that the words “does it really matter” are succeeding on her claim (CPR, Pt 24.2(a)(i)). repeated throughout the song and comprise its lyrical hook. She claims that copyright subsists in the 2Theclaimant,whodescribesherselfasasinger Work (as so defined) and that she owns the copy- and songwriter, alleges that the defendants have in- right. She alleges that in issuing, selling and distrib- fringed her copyright in a musical work, a song, the uting “Nothing Really Matters” in the United King- lyrics and vocal melody for which she said she dom the second defendant infringed her copyright composed between November 1995 and March in the Work (as so defined) and that, as publishers 1996. The song which she later named “Forever of Madonna's and Mr Leonard's compositions, the After” was recorded with a musical accompaniment first and third defendants respectively have author- arranged and performed by a Mr Peter Twomey. ised the reproduction of the Work in the United Kingdom. She pleads the circumstances in which 3Theseconddefendantisarecordcompany.One she says that the copying occurred. of its artists whose recordings it releases in this country is the internationally famous Madonna 5Amendedfurtherinformationgivenpursuantto (Madonna Ciccone). She co-wrote a song with CPR, Pt 18 and served by the claimant on Decem- Patrick Leonard entitled “Nothing Really Matters”. ber 8, 2004 describes the features of “Forever The first defendant publishes in this country the After” which are alleged to form the Work as the music and lyrics written by Madonna. The third de- combination of those three features and makes clear fendant publishes in this country Patrick Leonard's that no others were relied on. The further informa- music and lyrics. “Nothing Really Matters” appears tion also explains what is to be understood by those on a Madonna album entitled “Ray of Light”. The three features. By “voice expression” is meant, in second defendant released that album in this coun- effect, “timbre” (illustrated by a comparison try in 1998. The song has also been released as a between the “gravelly” vocal expression of one CD single and in other formats and is available as a well-known performer and the “twangy” vocal ex- mobile telephone ringtone. pression of another). By “pitch contour” is meant “the general shape of the pitches to which the 4Althoughacomplaintofcopyrightinfringement words ‘does it really matter’ [in “Forever After”] was first made in correspondence in very early are sung” rather than, as I understood it, the notes January 2000 (the complaint relating to both music- themselves. By “syncopation of or around the al and literary copyright in the claimant's song), this words ‘does it really matter’” is meant the action was not begun until 30 December 2003 “unnatural metrical stress” given to the syllables of © 2012 Thomson Reuters. [2006] E.M.L.R. 2 Page 3 [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript [2005] EWHC 449 (Ch) [2005] E.C.D.R. 21 [2006] E.M.L.R. 2 [2005] F.S.R. 34 (2005) 28(6) I.P.D. 28046 Official Transcript (Cite as: [2006] E.M.L.R. 2) those four words “in terms of their placement with- works he relies on. The need, as Laddie J. observed in the two bars [in which they are sung] and the un- in that case, is “… to be alert to the possibility of usual rhythmic and durational stress in terms of being misled by what may be called similarity by their elongated durations”. excision … In copyright cases, chipping away and ignoring all the bits which are undoubtedly not cop- 6InsofarasIhavebeenabletofollowprecisely ies may result in the creation of an illusion of copy- what is intended by those three features, they ap- ing in what is left”. He warned against losing sight pear, at any rate in large part, to appertain to inter- of the differences between the claimant's work and pretation or performance characteristics by the per- the alleged infringement and emphasised that the former, which is not the legitimate subject of copy- differences are important in deciding whether copyright protection in the case of a musical work, ing has taken place. rather than to composition, which is. Thus it is pleaded (in relation to “pitch contour”) that each 10 What the copyright work is in any given case is sung version of the contour is subject to improvisa- not governed by what the claimant alleging copy- tion by the singer. right infringement chooses to say that it is. Rather, it is a matter for objective determination by the 7Bethatasitmay,thedefendants,whoappearby court. (See, to this effect in relation to legislation Mr Thomas Moody-Stuart, contend that the copy- which is not relevantly different from the Copy- right work relied upon by the claimant which she right, Designs and Patents Act 1988, the remarks of alleges the defendants to have infringed cannot con- Drummond J.

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