By Paul Sipio (University of Pennsylvania Law School)
By Robert Cason and Daniel Müllensiefen (University of London)
Plaintiffs, Francis Day & Hunter Limited and Leo Feist Inc., music publishers of London and New York, were the owners of the copyright in a song called “In a Little Spanish Town,” of which the words were written jointly by Samuel Lewis and Joseph Young, and of which the music was composed by Mabel Wayne. The song was composed in 1926, and was extensively exploited in the United States of America and elsewhere by the publication of sheet music, by the distribution of gramophone records, and by broadcasting. Unlike many popular songs, “In a Little Spanish Town” appeared to have retained its popularity over the years. Defendants, Sydney Bron, trading as Debmar Publishing Company Limited, and Debmar Publishing Company Limited, were the owners of the copyright in a song called “Why,” which was composed by Peter de Angelis to words written by Bob Marcucci.
In 1960, Plaintiffs issued a writ against Defendant, Sydney Bron, claiming an injunction to restrain him, his servants, agents, or otherwise, from reproducing in any material form the song entitled “Why,” or any other song which reproduced or was an adaptation of any substantial part of “In a Little Spanish Town,” or from authorizing any of these acts without the consent of Plaintiffs. The writ further claimed an inquiry as to damages for infringement of copyright, an account of profits, and delivery of any infringing material. At the hearing, evidence was given by various musical experts and musical illustrations were given vocally and on the piano. Recordings of “In a Little Spanish Town” sung by Bing Crosby, made in 1955, of “In a Little Spanish Town” by Mr. Oliver, made in 1957 or 1958, and of “Why” sung by Anthony Newley, and of an instrumental version of “Why” recorded by Victor Sylvester’s Band, were also played to the court.
The trial judge reached the conclusion that there was a definite or considerable degree of similarity between the two songs. However, the judge also concluded that to succeed, Plaintiffs must prove not only objective similarity, but that this similarity was due to an act of copying, whether conscious or subconscious. The judge accepted Peter de Angelis’s evidence that there had no been conscious copying on his part. The judge refused to draw the inference that de Angelis must have heard “In a Little Spanish Town” or Bing Crosby’s recording of it. Therefore, on the issue of unconscious copying, the judge held that there was insufficient factual material from which to infer that de Angelis had sufficient knowledge or memory of “In a Little Spanish Town” to justify the conclusion that in composing “Why,” he unconsciously copied Plaintiffs’ song. Accordingly, the trial judge dismissed Plaintiffs’ case.
As to the similarity between the two songs, the trial judge reached the following conclusions:
(1) there was a difference in structure between the two songs––one was composed on the basis of contrast and return (i.e., a rondo scheme), and the other was constructed on a thematic basis;
(2) the essential part of “In a Little Spanish Town” was in its first eight bars. If “Why” had borrowed this essential theme in its first eight bars, the procedure adopted by “Why” of staying with it and varying the development instead of following the “In a Little Spanish Town” procedure of contrast, would not have made a significant difference with “In a Little Spanish Town,” but might have even accentuated the likeness;
(3) the theme of “In a Little Spanish Town” was made up of commonplace elements or, as some witnesses had called them, clichés. The first six notes were a commonplace enough series; they were found in an Austrian country dance and in a song “Let Us Sing Merrily.” The device of repetition, of resting for two bars on a long note, and of repetition in sequence, were the commonest tricks of composition;
(4) taking merely the notes of the melodies, there was a noticeable correspondence between the two songs. It was not note for note, nor at any point did more than five consecutive notes coincide, but the correspondence existed. 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 “In a Little Spanish Town,” constituted a not insignificant difference;
(5) the harmonic structure of the two eight-bar sections was identical, but was completely commonplace and insignificant;
(6) correspondence of melodic notes, even complete correspondence, was not enough to make one tune like another. Many examples were given where there was an exact coincidence of notes, but the tunes were different and indeed incomparable. Time and rhythm were of equal, and in some views of greater, importance. The song “Let Us Sing Merrily” was given as an example of the use of the same notes as the first bar of “In a Little Spanish Town,” with a totally different effect produced in rhythm;
(7) although “In a Little Spanish Town” was in 3/4 time and “Why” was in 4/4 time, this was not of itself a decisive factor in establishing a difference between them. It was not really disputed that in the field of popular songs, many tunes can be transferred from one time to the other and retain their substantial identity. This is not true of all tunes, but in relation to “In a Little Spanish Town” it was shown, by means of recordings played in 4/4 time, that adaptations to this time could be made without loss of recognition;
(8) as regards rhythm, there were certain differences. The swing in “Why” from the mediant held for half a bar, down a sixth, to an accented note did create a different impression from the even movement from the mediant (duration a quaver [i.e., eighth note]) down a sixth to an unaccented note. The accent in “In a Little Spanish Town” was on the tonic third note;
(9) the difference in the third and seventh bars was not unimportant; there was character in the drop of a fifth and a fourth respectively to a different long note, and it was clear from de Angelis’s evidence that this difference was not really to be accounted for by the exigencies of the words; it was a deliberate choice of composition made by him before the words were written.
On appeal, Lord Justice Willmer thought it impossible to say that the trial judge reached a wrong conclusion on what was eminently a question of fact for him. The Lord Justice opined that if it could be said that the method of development employed in “In a Little Spanish Town” and “Why” were so distinctive and idiosyncratic as to preclude the possibility that its adoption by the two composers was the result of coincidence, that would be a very strong argument in Plaintiffs’ favor. But, because the devices used by the two composers for developing the phrase stated in the first bar were among the commonest tricks of composition and exactly the sort to be expected from the composer of a popular song, Lord Justice Willmer did not think the fact that de Angelis developed the opening phrase stated in the first bar by way of the same devices as were employed by the composer of “In a Little Spanish Town” could be taken as in any sense proof of copying. Rather, there was at least an equal probability that his choice of these devices was the result of coincidence. As such, the Lord Justice concluded that no sufficient reason had been shown for interfering with the trial judge’s decision and, accordingly, dismissed the appeal.
Lord Justice Upjohn emphasized that the question of unconscious copying was to be treated as purely a question or inference of fact which might be drawn in the circumstances of a particular case, and not as a presumption of law. Because the Lord Justice entirely agreed with the conclusion of fact reached by the trial judge, he thought it unnecessary to decide the question of whether there is no difference in law between conscious and unconscious copying. Accordingly, Lord Justice Upjohn agreed that the appeal must be dismissed. Lord Justice Diplock, too, agreed that it was impossible to say that the trial judge came to a wrong conclusion of fact, reiterating much of what was said by the trial judge and his brethren.
Robert Cason and Daniel Müllensiefen
The claimant owned
the copyright in the musical work “In a little Spanish Town”
from the musical South Pacific and issued a writ against the defendants
for an injunction against the release of the song “Why” as
well as an inquiry into the possibility of damages due to alleged
similarity between the tunes.
Although the court
accepted there was a definite or considerable degree of similarity
between the works, the defendant’s argument was accepted that there
had been no conscious copying and insufficient evidence to infer
a case of unconscious copying. For this reason the case was dismissed
and referred to the Court of Appeal which addressed the question
of whether an irrebuttable presumption of unconscious copying arose
when there is substantial similarity between works as well as proof
of a causal connection.
The court accepted a "definite" or "considerable" degree of similarity between the songs however the case failed as there was insufficient evidence to infer either conscious or unconscious copying by the defendant. It was held the similarity between the songs was a matter of coincidence.
The particular section
of the claimant's work subject to a comparison was the first eight
bars of the chorus against the first eight bars of the defendant's
work (see attached notation). Much analysis of the musical similarity
took place within the case. In total, nine points were addressed
(see below). With this in mind the judge (Wilberforce) held there
was a definite or considerable degree of similarity which was not
disputed by the Court of Appeal.
There were nine specific points raised in the musical analysis of
“(1) The structure of the two songs is [thematic vs contrast and return]
(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 is 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
(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
(5) The harmonic structure of the first eight bars is the same in both cases; but this is completely commonplace and insignificant.
(6) Correspondence of notes is not of itself 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 is followed by a
descent to an accented 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 each start with the same note as in "Spanish Town," but after an interval of a crotchet there is a drop of a fifth and a fourth respectively to a different held note.”
Opinion by Judges Willmer, Upjohn, and Diplock
Opinion Text (PDF)
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