2002 WL 820020 Page 1 Official Transcript Official Transcript (Cite as: 2002 WL 820020) Mr David Kitchin QC Marianne Creagh (Professionally known as Wednesday 22nd May, 2002 Marianne Cray) v Hit and Run Music Publish- ing Limited Representation Case No: 0102006 High Court of Justice Chancery Division •MrRichardEdwards(instructedbyGersten&Nixon)fortheClaimant. •MrTimPenny(instructedbySeddons)fortheDefendant. Limited and Charisma Music (Publishing) Limited. JUDGMENT Hit & Run granted a mechanical licence to EMI Re- cords Limited to make sound recordings of the Introduction song, in particular as sung by Imaani, and gave per- mission for the work to be performed in public and 1. This is an action for infringement of copyright. broadcast on numerous occasions prior to and after The claimant, Ms Creagh, is a songwriter and is the Eurovision Song Contest. known professionally as Marianne Cray (“Ms Cre- agh”). 5. It was not in the end disputed that Ms Creagh was the author and owner of the copyright in the 2. Ms Creagh is the composer of the music and lyr- various versions of her song WAYN. The real con- ics of a song called Where Are You Now test between the parties arose in relation to the al- (“WAYN”). In these proceedings Mr Creagh claims legation of infringement. In particular, it was vigor- that she is the owner of the musical and literary ously disputed that the song WAY was derived in copyright subsisting in the song and that these any way from the song WAYN or that it involved rights have been infringed by the defendant, Hit and the reproduction of a substantial part of any literary Run Music (Publishing) Limited (“Hit and Run”), a or musical work embodied in it. music publishing company. The background facts 3. The complaint arises in relation to another song called Where are You (“WAY”). Ms Creagh first 6. Ms Creagh composed the first version of the heard at least part of it in 1998 when she was song WAYN in about 1985. She produced a record- watching a trailer for the Eurovision Song Contest. ing of it using a friend's recording equipment. The She heard what she took to be the chorus of her version of the song was referred to in the proceed- song being such by the female pop artist profes- ings as “WAYN Original”. Shortly afterwards, Ms sionally known as “Imaani”, the British entrant for Creagh produced another recording of the song at that year. the Rondor Studios in Parsons Green, referred to as “WAYN Rondor”. 4. WAY was allegedly written by three authors, Mr Philippou, (known as Mr Manakiza), Mr Simon 7. Very little happened thereafter until early 1995 Stirling and Mr Scott English. It was published by when Ms Creagh met a Mr Johnny Stirling of Hit & Hit & Run, together with Warner Chappell Music Run. So began a relationship which lasted for about 15 months. Ms Creagh played Mr Stirling her song © 2012 Thomson Reuters. 2002 WL 820020 Page 2 Official Transcript Official Transcript (Cite as: 2002 WL 820020) and he appeared to like it. He arranged for her to cussion. He explained and I accept that he had nev- make a recording of the song with a producer called er had a money problem with Mr Stirling. Mr David Ogilvy. This took place over two days and at the expense of Hit & Run. The result was the 12. The second set of incidents concerned Ms Cre- third version of the song, referred to in these pro- agh, Mr Ravenhall and Mr Johnny Stirling. Ms Cre- ceedings as “WAYN Ogilvy”. Neither Ms Creagh agh gave evidence that during a conversation with nor Mr Stirling was very impressed with the result, Mr Ravenhall he said to her that he had had meet- which seemed to them to be rather bland. ings with Mr Stirling and made an offensive obser- vation to the effect that he and Mr Stirling had de- 8. In August 1995 Ms Creagh met another producer cided the song needed a black singer. Ms Creagh called Mr John Ravenhall. There followed various continued that when she later reported this conver- meetings between Mr Ravenhall and Mr Johnny sation to Mr Johnny Stirling, he flew into a rage, Stirling and between Mr Ravenhall and Ms Creagh. and indicated that he and Mr Ravenhall would de- In about November 1995 Ms Creagh and Mr cide who sang the song. I did not have the benefit Ravenhall produced a fourth version of WAYN, re- of evidence from Mr Ravenhall, but Mr Stirling ferred to as “WAYN Ravenhall”. strenuously denied this allegation and that any such conversations had taken place. What was not dis- 9. Finally, in May 1996 the fifth and last version of puted was that at about this time Mr Stirling and the song was produced with a Mr Phillip Tennant. Ms Creagh discussed the possibility of another per- It was referred to as “WAYN Tennant”. Both son singing the song if they could agree terms, but “WAYN Ravenhall” and “WAYN Tennant” were that Ms Creagh wanted another year to see if she also produced at the expense of Hit & Run. could “get somewhere with it first”. 10. I should mention at this stage that during the 13. Thirdly, and after the production of WAYN course of the relationship between Ms Creagh and Tennant, Ms Creagh alleged that Mr Johnny Stirl- Mr Johnny Stirling certain conversations and incid- ing said to her words to the effect that if she did not ents were alleged to have taken place, the substance sign the song to him and he saw her singing it on of which was very much in dispute. Each party re- stage then she would be “singing in a wheel chair”. lied on aspects of them in relation to the allegation Ms Creagh said she understood this as a threat re- of copying. I explain here how they arose and re- vealing that Mr Johnny Stirling was determined to turn to them later in considering the issues to be de- have and use her song. It was again specifically termined. denied by Mr Johnny Stirling. 11. The first took place between Ms Creagh and Mr 14. Finally, Ms Creagh maintained that one day she Ogilvy. It was Ms Creagh's evidence that whilst was in Mr Johnny Stirling's office with the song with Mr Ogilvy she overheard a telephone conver- WAYN playing when a young man entered. He was sation between Mr Ogilvy and Mr Johnny Stirling introduced by Mr Johnny Stirling as “Simon”, and which involved a heated argument about money. Ms Creagh understood him to be Mr Simon Stirl- When she asked Mr Ogilvy about it he told her that ing, a writer with Hit & Run and, as she sub- Mr Johnny Stirling had not paid him for work he sequently found out, one of the authors of the al- had done for Hit & Run. I understood Ms Creagh leged infringement. Accordingly she formed the considered this the first indication that the trust she view that Mr Simon Stirling had heard the song had in Mr Johnny Stirling might be misplaced. Mr WAYN in her presence. It has since become clear Ogilvy's evidence was very different. He could re- that the man could not have been Mr Simon Stirling call no such incident and could only assume that and was probably Mr Johnny Stirling's nephew, Es- Ms Creagh had misinterpreted a light hearted dis- mond. It is accepted that Mr Esmond Stirling had © 2012 Thomson Reuters. 2002 WL 820020 Page 3 Official Transcript Official Transcript (Cite as: 2002 WL 820020) no connection with the alleged infringement. Nev- are relevant and may be derived from the cases ertheless, Ms Creagh maintains that she was intro- cited to me. duced to him as “Simon”, and this was again a mat- ter disputed by Mr Johnny Stirling. 20. First, what is a substantial part depends more on the quality than on the quantity of that which is 15. In May 1998 Ms Creagh was watching a televi- taken: Ladbroke (Football) Ltd v William Hill sion trailer for the Eurovision Song Contest when (Football) Ltd [1964] 1 WLR 273 at 276 per Lord she heard the chorus of the British entry WAY be- Reid. ing such by Imaani. In her words, she “saw and heard my chorus being sung by a black woman”. 21. Secondly, in a case where an altered copy has She went out and bought a copy, and found Mr been produced then it is a useful test to consider Johnny Stirling's name as executive producer, the whether the infringer has incorporated a substantial name of Mr Simon Stirling as a co writer and the part of the independent skill and labour contributed name of Hit & Run. She formed the view that Mr by the original author in creating the copyright Johnny Stirling had done everything he had work: Designers Guild Ltd v Russell Williams threatened. (Textiles) Ltd [2001] FSR 11 at [64] per Lord Scott. The law 22. Thirdly, certain ideas expressed by a copyright 16. Each version of WAYN contains a literary and work may not be protected because, although they musical work protected by copyright. The Copy- are ideas of literary, dramatic or artistic nature, they right, Designs and Patents Act 1988 protects such are not original, or so commonplace as not to form works from reproduction in any material form. Sec- asubstantialpartofthework:Designers Guild Ltd tion 16(3) of the Act provides that such protection vRussellWilliams(Textiles)Ltd[2001]FSR11at applies to the reproduction of the work as a whole [25] per Lord Hoffmann.