Copyright and the importance of evidence of creation

Written by Laura Gathercole | December 20, 2021


The High Court recently heard a case where the claimant, Kelly-Marie Smith, alleged that the lyrics and melody in the chorus of a song she composed, ‘Can You Tell Me’, was copied by James Newman and members of Rudimental (the defendants) in their song ‘Waiting All Night’.

The copying allegation related only to James Newman as he was the person who contributed the lyrics and melody which were similar to that of the claimant’s.

The Judge considered the similarities and the differences between the songs in melody, lyrics and rhythm. When considering whether the work had been copied, the Judge took into account various factors including the extent to which the defendant was aware of the claimant’s work, how striking or generic the work is and how probable it is that any similarities are coincidental.

The Judge concluded that the song had not been copied. The main reasons for this were:

1. The simplicity of the songs. There are significant differences between the two songs, and the lyrics and melody were not particularly unusual or unique considering the genre of music, meaning that it was plausible that both song writers could have had these similar ideas without one having copied from the other. The phrase ‘tell me that you need me’ was held to be a common expression, and the melody was described as ‘simple’.

2. It was unlikely that the defendants had heard the claimant’s song because it was not commercially produced and was not particularly well-known. There was a promotional video on some social media, but this was years prior, and the song only started in the video at 12 minutes. It was argued that there were links between the claimant and defendants through mutual connections which meant that it was more likely that her song would have been heard, but these links were held to be ‘tenuous’. It was concluded that it was unlikely that James Newman would have ever heard the song and therefore unlikely that he could have copied it, even inadvertently.

3. The defendant’s Voice Memo clearly influenced the decision as it provided strong evidence as to the independent creation and evolution of ‘Waiting All Night’. It provided an explanation as to how the song was composed and added weight to the argument that the similarities were coincidental. The Voice Memo consisted of James Newman improvising and trying out different lyrics and variations of melody, one of which was subsequently used in the song, and was similar to that of the claimant’s.

A presumption of copying arises when the works in question are very similar and when it is proven that the defendant had access to the claimant’s work. It is therefore important for any creator of works to keep records and have evidence of the creation process because this can help to prove independent creation and thus rebut this presumption of copying.

Briffa can advise on all aspects of copyright and music law.

Written by Laura Gathercole, Paralegal

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