Mood Music Publishing Company Ltd v De Wolfe Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,THE MASTER OF THE ROLLS |
| Judgment Date | 28 October 1975 |
| Judgment citation (vLex) | [1975] EWCA Civ J1028-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 October 1975 |
[1975] EWCA Civ J1028-1
The Master Of The Rolls (Lord Denning)
Lord Justice Orr and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
Revised
Mr. ANDREW BATESON, and Mr. JOHN MUMMERY (instructed by Messrs. White and Webb) appeared on behalf of the Appellant Defendant.
Mr. JOHN WILMERS, Q. C., and Mr. E. P. SKONE-JAMES (instructed Messrs. Davenport Lyons & Co.) appeared on behalf of the Respondent Plaintiff.
The Mood Music Publishing Co. Ltd. keeps a library consisting of records of musical works. They own the copyright in the works and supply them to television producers - who use them for background music for their productions. One of the works in the plaintiff's library is a musical work called Sogno Nostalgico. It was composed by an Italian, Mr. Sciascia, in 1963. The copyright of it was assigned to the plaintiffs in 1964. A record was made of it in Italy. One of the records was brought to England and kept in the plaintiffs' library here. After 1967 copies were made here and were available in the library.
Mr. de Wolfe is in the same line of business. In 1967 he had in his library a musical work called "Girl in: the Dark". He supplied it to television producers for use in a play called "Magnum for Schneider". Some one in the plaintiffs' employment saw that play and heard the music. He thought that "Girl in the Dark" was very like "Sogno Nostalgico" and might have been copied from it. So on 10th March 1967 the plaintiffs wrote to Mr. de Wolfe, the defendant, co-plaining that the "Girl in the Dark" was an infringement of Sogno Nostalgico.
On 24th March 1967 the solicitors for Mr. de Wolfe replies in these terms:
"Girl in the Dark
"It appears from your letter that you have in your library a musical work entitled 'Sogno Bostalgico' which appearently bears some resemblance to the above work which is included in our Clients' Music Library and in which they own the copyright.
Our Clients' work was composed by J. Trombey who resides in Holland and from whom they took an assignment of copyright in 1966. The fact that your work" - that is Sogno Nostalgico -"was composed prior to our Clients' work is not really relevant in the circumstances, as, of course, mere similarity between twomusical works does not constitute any infringement. Infringement only occurs where there has been an actual copying of a copyright work by another person without the owner's consent.
It would appear therefore that the similarity between the works is coincidental, in which event neither work infringes the other."
That letter shows that Mr. de Wolfe recognised that the two works were very similar. Also that the plaintiffs' work was produced prior to his own. But that bis answer to the claim was that the similarity had arisen by sheer coincidence without any copying from the plaintiffs' work. The Mood Music Publishing Co. did not take the matter further until 1970. They then raised the matter again. Mr. de Wolfe's solicitors replied in the same terms as in their letter of 26th March 1967 which I have read.
On 11th December 1970 the Mood Music Co. issued a writ against de Wolfe. In the statement of claim they said they were the owners of the copyright in the musical work Sogno Nostalgico and that the defendants had infringed it by their work, the "Girl in the Dark". The defendants denied that there was any infringement; and, by an amendment in 1973 they alleged that their work "Girl in the Dark" was composed by a Dutchman called Stoeckart, known as J. Trombey, in or about the first half of 1960, and that they acquired title from him. On discovery they disclosed a book of music said to have been composed by the Dutchman in 1960 including this work.
Last week the trial started before Mr. Justice Fox. Some days were 3pent in taking evidence. Some of the evidence was as to "similar facts". Part of it was taken de bene esse. But then Mr. Bateson asked the Judge for a definite ruling whether or no evidence of "similar facts" was admissible. The Judge yesterday morning ruled that some of it was admissible. Mr. Bateson challenges his ruling; and, with the leave of the Judge, appeals to this Court for a decision now. The hearing has been adjournedpending our decision.
In order to appreciate the point, I must state the nature of the evidence which is sought to be admitted. One matter relates to a "trap order" which was given by or on behalf of the plaintiffs. It was arranged in this way. The plaintiffs made a record of a distinctive piece of music called "Fixed Idea". The copyright undoubtedly belonged to the plaintiffs. They wrote on the record "Taken off air U. S. A." That was not true. It was not taken from a piece which had been broadcast in the U. S. A. It...
To continue reading
Request your trial
-
O'Brien v Chief Constable of South Wales Police
...an inflexible rule of admissibility. 47 I propose to jump nearly 100 years to an observation of Lord Denning MR in Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] Ch 119. This was a breach of copyright case involving music and the issue was whether the judge had properly admitted similar......
-
Otkritie International Investment Management Ltd and Others v Georgy Urumov (also Known as George Urumov) and Others
...been expressly pleaded. For present purposes, I am content to accept that the position is as set out by Lord Denning MR in Mood Music Publishing v. De Wolfe Ltd. [1976] 1 Ch 119 at 127C-E (cited in O'Brien by Lord Philips (at para 47) and, with express approval, Lord Carswell (at para 72)):......
-
Thorpe v Chief Constable of Greater Manchester Police
...1 W.L.R. 625 at page 630 per Mr. Justice Warner. Lord Denning M.R. has suggested, in the passage from his judgment in Mood Music Publishing Co. v. De Wolfe Ltd. [1976] Ch. 119 which is set out in the judgment of Lord Justice Neill, which I have had the advantage of reading in draft, that i......
-
Dhawan v. College of Physicians and Surgeons (N.S.), (1998) 168 N.S.R.(2d) 201 (CA)
...[1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 60]. Mood Music Publishing Co. v. DeWolfe Ltd., [1976] 1 All E.R. 763 (C.A.), refd to. [para. MacDonald v. Canada Kelp Co. et al. (1973), 39 D.L.R.(3d) 617 (B.C.C.A.), refd to. [para. 68]. College of Physicia......
-
Character Evidence: Primary Materiality
...Scotia) , 1998 NSCA 83 at paras 54–74 . 351 S(RCM) v K(GM) , 2005 SKQB 296 at para 52. 352 Mood Music Publishing Co v De Wolfe Ltd , [1976] 1 All ER 763 (CA). See also KN v Alberta , 1999 ABQB 270, and College of Physicians and Surgeons of Ontario v K (1987), 59 OR (2d) 1 (CA). THE L AW OF ......
-
Table of cases
...172 Monsanto Canada Inc v Schmeiser (2002), 218 DLR (4th) 31 (Fed CA) .............17 Mood Music Publishing Co v De Wolfe Ltd, [1976] 1 All ER 763 (CA) ............ 133 Moore v Getahun, 2014 ONSC 237 .................................................................... 262 Mooring v Canada (......
-
Case Management, Similar Fact Evidence in Civil Cases, and a Divided Law of Evidence
...ofAppeal allowed evidence to be admitted concerning another customer whose jewellery had alsobeen lost when deposited with that bank.3 [1976] Ch 119, 127.4 In criminal cases this process was set out in Lord Mackay of Clashfern’s speech in DPP vP[1991] 2AC more general terms of oppression an......
-
Hearsay, Bad Character and Trust in the Jury: Irish and English Contrasts
...by s. 41 of the Defamation Act 2009.57 Law Reform Commission, above n. 54.58 Ibid. at 159.59 [1962] 1 All ER 623.60 Ibid. at 631.61 [1976] Ch 119.62 Ibid. at the other side: and also that the other side has fair notice of it and isable to deal with it.63The central place of relevance in the......