Francis Day & Hunter Ltd v Bron
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK,LORD JUSTICE UPJOHN |
| Judgment Date | 25 February 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J0225-1 |
| Docket Number | 1960. F. No. 1512 |
| Court | Court of Appeal |
| Date | 25 February 1963 |
[1963] EWCA Civ J0225-1
Lord Justice Wilimer
Lord Justice Upjohn and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
(from Mr. Justice Wilberforce.)
Br JOHN G. FOSTER, Q.C, and Mr F.E. SKONE JAMES (instructed by Messrs Davenport, Lyons & Co.) appeared on behalf of the Appellants (Plaintiffs).
LORD JUSTICE WILLMER: This is an appeal from a Judgment of Mr Justice Wilberforce, given on the 27th July 1968, whereby he dismissed an action brought by the plaintiffs for infringement of their copyright in a song called "In a Little Spanish Town" (to which I will refer hereafter as "Spanish Town"). This was composed In 1926, and (as has been admitted by the defendants) was extensively exploited in the United States of America and elsewhere by the publication of sheet Music, by the distribution of gramophone recordsand toy broadcasting. Unlike many popular songs, "Spanish Town" appears to have retained it's popularity over the years. Records published in this country (some of them quite recently) were played to us during the course of the hearing; and, speaking for myself, I was readily able to recognise the tune as a familiar one which I had heard on frequent previous occasions.
The defendants are the publishers of another song called "Why", which was composed in 1959 by Mr Peter de Angelis. "Spanish Town" is written in 3/4 time, and "Why" in /4 time. There are a number of other differences between the two works which were the subject of a good deal of evidence by musical experts on both sides. But when the two songs were played to us, it was Immediately apparent, to me at any rate, that the effect on the ear was one of noticeable similarity. This is a matter which is not without importance, for, as was pointed out by Mr Justice Astbury in ( Austin v. Columbia Gramophone Company Limited Macgillivray's Copyright Cases, 1917-1923, page 398): "Infringement of copyright in music is not a question of note for note comparison", but "falls to be determined by the ear as well as by the eye".
The learned Judge included in his Judgment a detailed analysis of the music structure of the two songs. I accept this as correct, and it is, I think, unnecessary for me to repeat it except in summary form. In each case the essential feature of the song is contained in the first eight bars, which constitute what has been described as a musical sentence, and in which the main theme is stated. It is common ground that in the case of "Spanish Town" these first eight bars constitute a "substantial part" of the work within the meaning of section 49 of the Copyright Act 1956. In "Spanish Town" a subsidiary and contrasting theme is then introduced, after which there is a return to the original theme, which is then re-stated with variations. Byway of contrast, "Why" is described as a "thematic" song; there is no subsidiary or contrasting theme, but, practically speaking, the whole song lb devoted to the development of the original theme.
Having given his analysis of the musical structure of each song, the learned Judge proceeded to state his conclusions as to the points of similarity or difference under nine headings, which I will attempt to summarise. (1) The structure of the two songs is different in the way that I have already described. (2) The first eight bars being the essential part of "Spanish Town", if the theme therein stated has been borrowed in "Why", the fact that it la developed by staying with it, rather than by way of contrast and return, would not make a significant difference, but might even accentuate the likeness. (3) The theme of "Spanish Town" is built up of musical commonplaces or cliches. The six notes of the first bar are a commonplace series, found in other previous musical works, and the manner in which this phrase is developed during the rest of the first eight bars is by way of some of the commonest tricks of composition. The result, however, is a combination which gives character and charm to "Spanish Town". (4) On a note for note comparison between the two songs there is a noticeable correspondence, though at no point do more than five consecutive notes correspond. But the fact that in "Why" the descent of one-sixth from the first to the second note Is Immediately followed by a leap back of a sixth to the original note Instead of an arpeggio, as in "Spanish Town", constitutes a not Insignificant difference. (5) The Harmonic structure of the first eight bars is the same in both oases; but this Is completely commonplace and insignificant. (6) Correspondence of notes is not of it self enough to create similarity; time and rhythm are equally Important. (7) In the present case there is a difference in time, but this is not a decisive factor, for in the case of "Spanish Town", as with other popular songs, a change of time from 3/4 to 4/4 does not destroy Its substantial Identity, or cause loss of recognition. (8) There is, however, a significant difference in rhythm between the two songs; this is exemplified in the first bar, which in the case of "Spanish Town" consists of an even sequence of six quavers, whereas In the case of "Why" the first note is held for half a bar, and la followed by a descent to anaccented note. (9) There is a significant difference between the two songs in the third and seventh bars. In "Spanish Town" these consist of a single held note; in "Why" these bars ch start with the same note as in "Spanish Town", but after an Interval of a crotohet there is a drop of a fifth and a fourth respectively to a different held note.
Having tated these various points of similarity and difference (which I wholly accept) the learned Judge expressed the view that, in relation to the aural appeal of the sentence as a whole, there is an undoubted degree of similarity between the two songs, the only question being what adjective to put before the word "degree". He expressed his conclusion as follows at page 11: "On the whole, I think Mr Palmer's word 'definite' or 'considerable' Is the right weight to put upon the degree of similarity; it Is such that an ordinary reasonably experienced listener might think that perhaps one had come from the other". With that conclusion, I entirely agree.
If the matter stopped there, I do not think it could be doubted that there was material on which to base the inference that the composer of "Why" deliberately copied from "Spanish Town". Were that the right inference, I am satisfied that the degree of similarity would be sufficient to constitute an infringement of the plaintiffs' copyright. But the composer of "Why" was called as a witness, and not only denied copying, but denied that he had ever seen the music of "Spanish Town", or even consciously heard It. He was a man of thirty-three years of age, and had lived most of his life in the United States. He stated that he had been composing music since he was eleven, and had played various instruments in dance bands. In cross-examination he admitted that at a younger age he might have hoard "Spanish Town", because he had heard a lot of music, but he adhered to his statement that he had never consciously studied it, and said that he did not recall ever playing it. She learned Judge accepted his evidence, and I do not think that we in this court could properly interfere with that finding even if we were invited to do so. which we were not.
But that, the plaintiffs say, is by no means the end of the case, for Mr de Angelis could will have copied from "Spanish Town" subconsciously. The song having been extensively exploited In the United States, the overwhelming probability (it is said) is that he mast have heard It; and the degree of similarity between "Spanish Town" and "Why" is such that an Inference of, at any rate, subconscious copying should be drawn. That, it is contended, would be enough to constitute an Infringement of the plaintiffs' copyright. The learned Judge, however, decided that there was not sufficient material to justify the inference that Mr de Angelis copied the plaintiffs' work, even subconsciously; and he accordingly dismissed the action. It is to this point that the present appeal has been mainly directed.
In approaching the suggestion of subconscious copying on the part of Mr de Angelis, It is to be observed that the Copyright Act c nowhere uses the word "copying". Section 2 subsection (5) provides: "The acts restricted by the copyright in a literary, dramatic or musical work are (a) reproducing the work in any material form; (b) publishing the work; (c) performing. the work in public; (d) broadcasting the work; (e) causing the work to be transmitted to subscribers to a diffusion service; (f) making any adaptation of the work; (g) doing, in relation to an adaptation of the work, any of the acts specified in relation to the work In paragraphs (a) to () of this subsection". By subsection (6), paragraph (b) "adaptation" in relation to a musical work is defined as meaning "an arrangement or transcription of the work". By section 48 subsection (1) "reproduction" Is defined as including reproduction In the form of a record. There is no further relevant definition of the word, and it has been left to judicial decision to Introduce the notion of copying.
Mr Arnold, In presenting his argument on behalf of the defendants, drew attention to the fact that in relation to musical copyright there are, under section 2 of the Act, only three forbidden processes, namely, "reproduction", "arrangement", and"transcription". Arrangement and transcription, he submitted, can be only the result of a conscious and deliberate process: a man cannot arrange or transcribe without knowing that he is doing so. The learned Judge's acceptance of...
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