[2003] E.C.D.R. 15 Page 1 [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Official Transcript [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Offi- cial Transcript (Cite as: [2003] E.C.D.R. 15) 4November20021 *162 Stephan Malmstedt v EMI Records Ltd and Per Gessle Representation (Case HC01C03820) High Court of Justice (Chancery Division) Deputy Judge M. Strauss Q.C. •Theclaimantrepresentedhimself •Forthedefendant:PushpinderSaini(instructedbyLee&Thompson,solicitors) Legislation referred to H2 Copyright — Musical work — Song — Action for infringement in respect of later song — Whether copy- ing could be inferred from similarities — Whether copying could be inferred from defendant's alleged prior knowledge of claimant's work — Action dismissed • Civil Evidence Act 1972, s.3 similarities between the two works which could not be HEADNOTE coincidental. On that basis the court would be obliged to conclude that, in some way, the second defendant had H4 The claimant, the author of a pop song called Jenny heard the song and copied it, notwithstanding the appar- and I,allegedthatanothersong,Sleeping in my car, ent credibility of his evidence and the evidence of other which was composed by the second defendant and re- witnesses. corded by the first defendant, infringed the copyright in the music of Jenny and I.Insupportofhisclaimhe H7 2.On the facts of this case, such similarity was cer- stated that he had sent a tape of Jenny and I to an exec- tainly not apparent on hearing the two songs. The al- utive who worked for the first defendant and also to an- leged similarities, whether taken individually or as a other agent who knew the second defendant. The second whole, did not indicate that there had been any copying. defendant denied that he had ever heard the tape of Further, such similarities as did exist could well be co- Jenny and I.In*163 evidence the defendants' expert incidental. Accordingly, on a clear balance of probabil- and an expert who was jointly instructed by the ities there was no copying. claimant and the defendant agreed that, while the chor- uses of both works shared certain similarities, those H8 3.Even if there had been copying, the amount of the similar features were commonplace and did not indicate claimant's song which the second defendant was alleged copying. to have been copied was not a substantial part of the claimant's work. H5 by the Deputy Judge, that the claimant's action would be dismissed: Cases cited in the judgment H6 1.There was no evidence that the second defendant had heard the tape of Jenny and I.Thisbeingso,the claimant could only succeed in an action for copyright infringement if he could demonstrate the existence of © 2012 Thomson Reuters. [2003] E.C.D.R. 15 Page 2 [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Official Transcript [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Offi- cial Transcript (Cite as: [2003] E.C.D.R. 15) • Geographia Limited v Penguin Books Limited [1985] F.S.R. 208 • Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 W.L.R. 273 •LiverpoolRCTrusteesInc.vGoldberg(No.3)[2001]1W.L.R.2335 cording artist/songwriter in Sweden called Niklas JUDGMENT Stromstedt, who the claimant thought had good contact. Earlier in this career, Mr Stromstedt had also been a re- 1Inthiscasetheclaimantclaimsdamagesandanin- cording artist at EMI and he was a friend of the second junction for infringement of copyright. He alleges that a defendant. He kept the tape for six months, but eventu- pop song composed by the second defendant, a member ally returned it saying that he had approached two com- of the group Roxette, and recorded on the first defend- panies, WEA (for whom he was himself now recording) ants' label, infringes his musical copyright in an earlier and BMG, without success. work called Jenny and I. 7Theclaimantcontinuedtoregardthetapeashishope 2Theclaimanthasactedinperson,withtheassistance for a break in his career until March 1994, when he of Mrs Chiverton acting as a McKenzie friend. He has heard Sleeping in my car and concluded that the chorus conducted his case with skill and, notwithstanding the from Jenny and I has been copied. There are some sim- strength of his feelings, with courtesy and moderation. ilarities between the two works and I have no doubt that the claimant's belief that his work has been unlawfully 3Theclaimantmadehisfirstdemonstrationtapein copies was and is entirely genuine. 1975 and he has since then made a number of other demonstration tapes as well as, in 1983, an album called 8ThefirststephetookwastocomplaintoSTIM,the “Looking for the red light”, which was released by EMI Swedish equivalent of the Performing Rights Society; and was well reviewed.*164 although this body does not have power to decide dis- putes, it will express a view in a case of this kind in or- 4In1991,theclaimantleftSwedenandmovedtoLon- der to assist the parties and may, if it thinks fit, freeze don in order to make another demonstration tape. This the royalties arising from disputed work. tape included Jenny and I,whichisundoubtedlyanori- ginal work and in my view one of some distinction, 9Inthisinstance,theCommittee'sviewwasthat,while with subtle and sensitive harmonies. there were similarities in the harmonic structure, there were also several differences, and that where the music- 5WhentheclaimantreturnedtoSwedeninOctober al phrases and chord structures were similar they were 1991, amongst the people he tried to interest in his not unique. The Committee also said that similarities in songs were Mr Kjell Andersson of the A&R department musical phrases were not unusual in this style of music. at EMI Sweden, in which Mr Anderssson had worked They did not freeze the royalties on the work. for some 17 years; he is now its head. Mr Andersson was the person at EMI who had been responsible for 10 In about May 1995, being unable to afford civil pro- signing the second defendant in the late 1970s, since ceedings, the claimant recorded a demonstration of the when he had successfully guided his career. Mr An- similarities between the choruses of the two works and dersson listened to the tape and kept it for about a week. went to the police with a criminal complaint. The police EMI was interested in a couple of the songs, but with obtained an opinion from a director of studies and uni- somebody other than the claimant as the recording versity lecturer at Stockholm University, Mr Brolinson, artist. The claimant wanted to record the songs himself who said that, while there were *165 certain similarities and asked for the tape back; it was duly returned. between the choruses of the two songs, these were in- sufficient to indicate plagiarism, and that the chorus of 6Shortlyafterthis,theclaimantapproachedanotherre- Sleeping in my car had its own characteristics which © 2012 Thomson Reuters. [2003] E.C.D.R. 15 Page 3 [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Official Transcript [2002] EWHC 3228 (Ch) [2003] E.C.D.R. 15 Offi- cial Transcript (Cite as: [2003] E.C.D.R. 15) distinguished it from Jenny and I.Thepolicedecided are commonplace and do not indicate copying. For the not to prosecute. most part, but not in every detail, the reasons given by Mr Oxendale and Mr Protheroe are the same. Mr Pro- 11 In about February 1996, the claimant approached a theroe maintained his view in the course of his oral senior lecturer at the University of Gothenberg, Mr Ola evidence. Stockfelt, who following consultation with two col- leagues wrote a letter which was critical of Mr Brolin- 14 The claimant has also given expert evidence on his son's view and suggested that he had not approached his own behalf, both by way of detailed written report and task with great care and accuracy; at this stage, Mr orally. Objection might well have been taken to this Stockfelt expressed no view of his own as to the degree either on the basis that an expert witness must be impar- of similarity between the two works. However, some tial (see Liverpool RC Trustees Inc v Goldberg (No.3) months later in October 1996, an article in Svenska [2001] 1 W.L.R. 2335), or on the basis that the appoint- Dagbladet reported Mr Stockfelt as saying that there ment of a single joint expert precludes the parties from had been obvious plagiarism and that the second de- relying on their own expert evidence. However, the de- fendant had “… nicked the chorus, it is noticeable espe- fendants *166 accepted at the outset of the hearing that cially in the chord changes …”. I have also been shown the claimant should be permitted to advance his case as avideoofaTVprogrammeinSweden,inwhichChris he wished, and to rely on his own reports and oral ex- Isakk, another well-known recording artist, said that the pert evidence. two works sounded the same, but that he was no sure if there had been theft by the second defendant. 15 The fundamental issue in the case is whether the second defendant copied the claimant's work. In his wit- 12 In November 1998, having appealed unsuccessfully ness statement he said that he had never heard it when to the Supreme Public Prosecutor against the police de- he composed Sleeping in my car in 1993. He was un- cision not to prosecute, the claimant returned to Eng- shaken in cross-examination. The claimant sought to land. These proceedings were commenced in June 2001. undermine his credibility by showing that, while in two On 31 July 2001, Gage J. refused to grant the claimant newspaper interviews in March 1994 and August 1995 an injunction.