While the summer break has meant that there have only been a few decisions from the court to consider, one decision relating to infringement of a popular drum and bass song confirms the key principles of copyright infringement.
The case
In the case of Smith -v- Dryden and others [2021] EWHC 2277 (IPEC), Kelly-Marie Smith, a singer/songwriter brought a copyright infringement action against nine defendants, of which included members of the drum and bass band Rudimental, and singer/songwriter James Newman. It was Miss Smith’s position that her 2007 song “Can You Tell Me” was copied by Rudimental’s 2014 hit “Waiting All Night”.
Certain similarities did exist between both songs and they were the phrases which formed the chorus of “Tell me that you” and the words “Need me”. Whilst the Judge accepted that there were similarities between the songs, it was held that there were significant features of each of them which caused them to be distinctive in their own right, therefore weakening the strength of the arguments claiming similarities. The Judge also commented that even less weight could be attributed to the selection of the lyrics given the similarities of the melodies and the genre of music involved.
Counsel for the defendants argued the common placeness of the lyrics where it was pointed out that 14 other artists had already used the phrase complained of “Tell me that you need me” and therefore the claimant could not rely on the fact that these lyrics, or their arrangement, were particularly original.
The other turning point in the matter was on the point of access to Miss Smith’s works. As is key when considering infringement of works by a third party, the courts will consider how publicly available and to what degree of access the alleged third party had to the content in question. In this case, Miss Smith’s song had never been commercially released and had only been made available through selected avenues. It was also stated that Miss Smith worked via very personal circles. It therefore follows that any access to Miss Smith’s work would be limited and the defendants therefore did not have access to Miss Smith’s songs. In addition to this, the court was presented with evidence of a voice memo from 2012 which demonstrated Mr Newman’s creative process. This evidence helped cement the fact that Mr Newman composed the arrangement of the song and the lyrics used independently of his access to Miss Smith’s content.
For this reason it was held by the presiding Judge that no copyright infringement did in fact take place by the defendants in the song “Waiting All Night”.
What are the key takeaways?
As the owners of copyright material or musicians, a point to take away from this judgment is
that the more complex or unique the arrangement of the lyrics is, the greater the likelihood that the courts will consider the material to be original. As a potential defendant in an action, this case also demonstrates how important it is to keep dated draft workings in the event that the creation of your content is challenged.
Get in touch with an IP specialist today
If you would like more advice on copyright infringement, please contact our Intellectual Property Senior Associate Humna Nadim on 0161 838 3434 or email humnanadim@kuits.com
