PROVING THINGS 214: SONGWRITING, COPYING AND DISCLOSURE: GIVE THEM A MINIM AND THEY’LL TAKE A MILE

An interesting issue as to proof and evidence arose in the decision of Mr Justice Zacaroli in Smith v Dryden & Ors [2021] EWHC 2277 (IPEC).  The claimant failed to establish that a song had been “copied”.  There are also issues in relation to the appropriate strategy to be adopted when a party is going to allege inadequate disclosure.  There are perils in simply alleging inadequate disclosure at trial.

“…. no application was ever made for further or specific disclosure.  Instead, the defendants were faced in cross-examination with attacks on their – and their solicitors’ – compliance with disclosure obligations.  I do not accept that the cost of making an application for disclosure is sufficient reason to justify leaving the attack on the defendants to trial, when they were unprepared to deal with it and unable to discuss the matter with their solicitors.”

THE CASE

The claimant is a singer and songwriter. She wrote a song “Can You Tell Me”, this was never commercially released but available on social media for a period.  The defendants were involved in the writing and distribution of a song “Waiting All Night”.  Waiting All Night was a commercial success.  The claimant claimed that the Defendants’ song had been (consciously or unconsciously) copied from the claimant’s song.

The defendants’ song can be heard here. 

The claimant’s song is available here (at about 13.00 onwards).

WHAT THE CLAIMANT HAD TO SHOW

It was necessary to establish copying.

10.              It was common ground that in order to establish infringement, it is not enough to show that the lyrics and melody of the respective choruses of Can You Tell Me and Waiting All Night are materially similar or even the same.  It is necessary to demonstrate actual copying of the copyrighted work.  As HHJ Birss QC (as he then was) put it, in Mitchell v BBC [2011] EWPCC 42, at [33], “[t]he 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.”

11.              Inadvertent or subconscious copying is sufficient (in which case the state of mind of the defendant is not in issue): Mitchell v BBC  (above), at [38].

EXPERT EVIDENCE

The judge found the expert evidence of limited assistance.  There was an attempt at close analysis of the musical score in a case when the songs had not been composed by writing.

21.              Both sides called evidence from expert musicologists: Mr Christian Siddell for the claimant and Mr Peter Oxendale for the defendants.  In a case such as this, where the claim of copying, so far as the music is concerned, relates to an extremely simple melody which utilises only three notes, there is limited need for extensive musicological analysis.  Given the importance of the impact of the two melodies on the ear, a detailed accounting of the number of occasions when the pitch or length of notes (or both) coincided as between the two songs, when transcribed, transposed and written in the same time signature, is in this case of limited utility.  A major point of contention appeared to be whether it was correct to transcribe a three-note phrase as ‘quaver, two tied quavers, quaver’, or as  ‘quaver, crotchet, quaver’.  This was particularly irrelevant given that both transcriptions sound exactly the same and neither song was composed by the notes being written on a page (or on a computer screen).  Ms Smith and Mr Newman each came up with the respective melodies by singing them from scratch.  For completeness, I reject the criticism that Mr Siddell transcribed the phrase by using two tied quavers in order to increase the number of points of coincidence between the two songs.

EVIDENCE THAT THE CLAIMANT’S SONG HAD EVER BEEN HEARD BY THE DEFENDANTS

The claimants fundamental difficulty in the current case was the failure to establish that the composer of the defendants’ song had ever heard the claimant’s composition.

“On the basis of all the evidence I have seen and heard it is unlikely that Mr Newman had access to Can You Tell Me.  It was  never produced commercially, so it is impossible that Mr Newman would have heard it in passing, for example being played in the background on a radio.  Although the 2007 Video was posted to two social media sites, and made available in 2007 to some people in the music industry, the claimant’s case that Mr Newman would have accessed the 2007 Video is extremely weak and involves too many tenuous links”

CRITICISM OF THE DEFENDANTS IN RELATION TO DISCLOSURE

Part of the judgment is critical of some of the defendants omissions made in relation to their search of their own social media accounts. However the claimant had not highlighted these issues prior to trial.

Mr Cuddigan was highly critical of both Mr Newman and Mr Izadkhah for their failure to carry out proper searches of documents within their social media accounts.  He criticised Mr Newman for having failed to carry out searches of one of his email accounts (the log-in details of which were not provided to his solicitors), of two of his three Twitter accounts, of his mobile phone messages, of his MySpace account, and of his Facebook and Twitter direct messages.  He also criticised Mr Newman for the deletion of his Twitter account which was done by his social media team after proceedings were commenced, as a consequence of him having been picked to represent the UK at the Eurovision Song Contest in 2020 (postponed to 2021).

60.              Mr Cuddigan criticised Mr Izadkhah for having failed to carry out searches of his Gmail account and of his MySpace account.

61.              To a large extent, the criticism was aimed at the defendants’ solicitors for having failed to supervise properly the disclosure process: leaving the witnesses to search their own social media sites, based solely on key words agreed between the parties.

62.              I found the explanation of each of Mr Newman and Mr Izadkhah as to their attempts (or lack of them) to investigate and search their social media accounts to be unconvincing.  The critical question, however, is whether this might indicate there are documents which they have failed to disclose and which might assist in showing that Mr Newman had access to Can You Tell Me before writing Waiting All Night.  I do not think that it does.  It is important to note that the gaps in the disclosure provided by the defendants have been apparent since October 2020.  Mr Newman’s disclosure certificate, for example, revealed that he had not been able to search his MySpace page or his electronic text messages. Mr Izadkhah’s disclosure certificate stated that he had not been able to search for emails and text messages.  Despite this, no application was ever made for further or specific disclosure.  Instead, the defendants were faced in cross-examination with attacks on their – and their solicitors’ – compliance with disclosure obligations.  I do not accept that the cost of making an application for disclosure is sufficient reason to justify leaving the attack on the defendants to trial, when they were unprepared to deal with it and unable to discuss the matter with their solicitors.  Although I have found Mr Newman’s evidence to be unconvincing on this point, I do not think this undermined the credibility of his evidence on the critical question whether he had accessed Can You Tell Me.  My conclusions on the likelihood of the defendants (and Mr Newman in particular) accessing Can You Tell Me are based primarily on the weakness (and the inherent improbabilities) of the claimant’s case that they did so.