England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 March 2005

Mr Justice Blackburne:

1. The is the defendants' application to strike out the claim against them on the ground that the re-amended particulars of claim disclose no reasonable grounds for bringing it (CPR Part 3.4(2)(a)), alternatively for summary judgment on the basis that the claimant has no real prospect of succeeding on her claim (CPR Part 24.2(a)(i)).
2. The claimant, who describes herself as a singer and songwriter, alleges that the defendants have infringed her copyright in a musical work, a song, the lyrics and vocal melody for which she said that she composed between November 1995 and March 1996. The song which she later named "Forever After" was recorded with a musical accompaniment arranged and performed by a Mr Peter Twomey.
3. The second defendant is a record company. One of its artists whose recordings it releases in this country is the internationally famous Madonna (Madonna Ciccone). She co-wrote a song with Patrick Leonard entitled "Nothing Really Matters". The first defendant publishes in this country the music and lyrics written by Madonna. The third defendant publishes in this country Patrick Leonard's music and lyrics. Nothing Really Matters appears on Madonna's album entitled "Ray of Light". The second defendant released that album in this country in 1998. The song has also been released as a CD single and in other formats and is available as a mobile telephone ringtone.
4. Although a complaint of copyright infringement was first made in correspondence in very early January 2000 (the complaint relating to both musical and literary copyright in the claimant's song), this action was not begun until 30 December 2003 which was almost four years later. The particulars of claim have undergone amendment and re-amendment. The claim, as now formulated, is that the recording of Forever After "includes an original musical work comprising the combination of vocal expression, pitch contour and syncopation of or around the words 'does it really matter'" (emphasis added). She refers to this as "the Work". She pleads that the words "does it really matter" are repeated throughout the song and comprise its lyrical hook. She claims that copyright subsists in the work (as so defined) and that she owns the copyright. She alleges that in issuing, selling and distributing Nothing Really Matters in the United Kingdom the second defendant infringed her copyright in the work (as so defined) and that, as publishers of Madonna's and Mr Leonard's compositions, the first and third defendants respectively have authorised the reproduction of the work in the United Kingdom. She pleads the circumstances in which she says that the copying occurred.
5. Amended further information given pursuant to CPR Part 18 and served by the claimant on 8 December 2004 describes the features of Forever After which are alleged to form the work as the combination of those three features and makes clear that no others were relied on. The further information also explains what is to be understood by those three features. By "voice expression" is meant, in effect, "timbre" (illustrated by a comparison between the "gravelly" vocal expression of one well known performer and the "twangy" vocal expression of another). By "pitch contour" is meant "the general shape of the pitches to which the words 'does it really matter' [in Forever After] are sung" rather than, as I understood it, the notes themselves. By "syncopation of or around the words 'does it really matter'" is meant the "unnatural metrical stress" given to the syllables of those four words "in terms of their placement within the two bars [in which they are sung] and the unusual rhythmic and durational stress in terms of their elongated durations".
6. Insofar as I have been able to follow precisely what is intended by those three features, they appear, at any rate in large part, to appertain to interpretation or performance characteristics by the performer, which is not the legitimate subject of copyright protection in the case of a musical work, rather than to composition, which is. Thus it is pleaded (in relation to "pitch contour") that each sung version of the contour is subject to improvisation by the singer.
7. Be that as it may, the defendants, who appear by Mr Thomas Moody-Stuart, contend that the copyright work relied upon by the claimant which she alleges the defendants to have infringed cannot constitute a musical work in which copyright can exist in that it comprises no more than features of, or extractions from, what properly and objectively is to be regarded as the relevant work. They contend therefore that the claim should not be allowed to proceed any further. This is only one of the defences which the defendants have pleaded. (Another is that, in any event, no copying occurred.)
8. Mr Moody-Stuart submits that copyright subsists in a work in its entirety, not in parts of or extracts from the work. If a part of a work is copied, copyright in the work in its entirety may be infringed if the part copied constitutes a substantial part, qualitatively or quantitatively, of the work as a whole. It is not open, he says, to a claimant to pick and choose the elements of a work upon which he relies in order to make the question of whether a substantial part has been copied more likely to be answered in his favour.
9. I agree. The first step in a copyright action, as Laddie J pointed out in IPC Media Ltd v Highbury-Leisure Publishing Ltd [2004] EWHC 2985 (Ch) at [8], is for the claimant to identify what work or works he relies on. The need, as Laddie J observed in that case, is "… to be alert to the possibility of being misled by what may be called similarity by excision … In copyright cases, chipping away and ignoring all the bits which are undoubtedly not copies may result in the creation of an illusion of copying in what is left". He warned against losing sight of the differences between the claimant's work and the alleged infringement and emphasised that the differences are important in deciding whether copying has taken place.
10. What the copyright work is in any given case is not governed by what the claimant alleging copyright infringement chooses to say that it is. Rather, it is a matter for objective determination by the court. (See, to this effect in relation to legislation which is not relevantly different from the Copyright, Designs and Patents Act 1988, the remarks of Drummond J in Coogi Australia Pty Ltd v Hysport International Pty Ltd (1998) 41 IPR 593, [1998] FCA 10 at 609.) The consequence of confining too narrowly the subject matter of the claimant's claim may be not only to deprive a defendant of what may be a good defence that what he took did not involve the taking of a substantial part of the true copyright work but also to create what in IPC Media Laddie J described (at [23]) as "a legal millefeuilles with layers of different artistic copyrights". (See also the remarks of Lord Hoffmann in relation to overlapping copyrights all arising at the same time and vested in the same person in Newspaper Licensing Agency Ltd v Marks & Spencer plc [2001] UKHL 38; [2002] RPC 4 at [17] and [18].)
11. It is clear that cherry-picking those features of Forever After to identify as the material copyright work matters where arguably Nothing Really Matters is the same is precisely what the claimant appears to have done. It is to be noted that the three features which alone, she says, constitute the musical work in which copyright is claimed do not extend to the surrounding melody, ie the notes themselves, their duration and rhythm, or to the rhythm of the particular phrase in which the three identified features are said to be found.
12. While I accept the submission of Mr Piers Acland, appearing for the claimant, that, as a general proposition, circumstances may exist which justify regarding a constituent part of a larger entity as in itself a copyright work, that can only be (as Drummond J in Coogi v Hysport at 610 pointed out) where the part in question can fairly be regarded as so separable from the material with which it is collocated as itself to constitute a copyright work. In the current case, it is obvious - indeed Mr Acland felt unable to advance any serious argument to the contrary - that identifying a separate copyright work in this way is simply not possible. The three somewhat elusive features identified by the claimant as her musical work cannot by any stretch of the imagination be said to be sufficiently separable from the remainder of the song as themselves to constitute a musical work.
13. Mr Acland made clear that, if I came to the view - as I have - that what is relied upon as the relevant copyright work is not, in law, capable of being properly so regarded, the claimant would not seek to amend her claim by pleading reliance upon the song, Forever After, (taken as a whole) as the relevant work. This is no doubt because one of the other defences to the claim is that the three features which it is said were copied do not constitute a substantial part of Forever After taken as a whole. That being so, it follows that the claim cannot succeed and that I should strike it out.
14. I indicated at the end of counsels' submissions that this was the conclusion at which I had arrived. It does not matter whether I strike out the claim under CPR Part 3.4(2)(a) or under CPR Part 24.2(a)(i). It is probably preferable to do so under the former of those two provisions. In the circumstances, I shall dismiss the claim with costs. Because the claimant is legally aided, I shall make the usual order for the assessment of her costs and direct that her liability to pay the defendants' costs, to be assessed in default of agreement, is not to be enforced without the court's further permission.