​Complaining Work

​Defending Work

Rodgers and Hammerstein

"There is nothin' like a dame"

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Denis King

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Comments (2)

By Paul Sipio (Univ. of Pennsylvania Law School) 

By Robert Cason and Daniel Müllensiefen (Univ. of London)

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Paul Sipio:

I. FACTS

Plaintiff, Williamson Music Limited, was the exclusive licensee of the Richard Rodgers and Oscar Hammerstein copyrights in the United Kingdom.  The other Plaintiffs were the trustees of the estates of Richard Rodgers and Oscar Hammerstein, respectively.  Plaintiffs claimed that the first Defendant, The Pearson Partnership Limited, an advertising agency, infringed the copyright in “There Is Nothin’ Like a Dame” from the Rodgers and Hammerstein musical, SOUTH PACIFIC, in creating a form of television advertisement for the second Defendant, National Express Limited, a bus company.  After Plaintiffs saw this advertising, an interlocutory injunction was sought to restrain the further showing of the advertisement until trial.
 
 The lyric of “There Is Nothin’ Like a Dame” included the following verse and chorus:
 “We got sunlight on the sand,
 We got moonlight on the sea.
 We got mangoes and bananas,
 We can pick right off the tree.
 We got volley ball and ping pong,
 And a lot of dandy games.
 What ain’t we got?
 We ain’t got dames!”
 “There is nothin’ like a dame,
 Nothin’ in the world.
 There is nothin’ you can name
 That is anythin’ like a dame.”
 
The lyric of the television advertisement, seemingly devised by the agency staff at The Pearson Partnership Limited and given to Denis King, an experienced professional composer, to compose suitable music to accompany them, included the following verse and chorus:
 
 “We got coffee, we got tea,
 We’ve got toilets if need be.
 We’ve got films on vi-de-o,
 So there’s lots for you to see.
 We’ve got seats so you can lay back,
 Just like they do in planes.
 And best of all,
 Rapide’s got Elaine!”
 “You’ve just got to meet Elaine,
 She’s a real swell girl.
 You would have to be insane
 To choose anyone but Rapide’s Elaine!”
 
In his will, Richard Rodgers directed his trustees that the artistic integrity and reputation of the musical compositions and lyrics written by him were not to be sacrificed to commercial success.  Both the legal business affairs advisor and a director for Chappell International Music Publishers Limited, a company appointed by Williamson Music Limited to manage and exploit the Rodgers and Hammerstein copyrights, averred that permission was never granted for the reproduction or adaptation of either the words or the music of Rodgers and Hammerstein compositions for the making of commercial advertisements to be shown in the United Kingdom.
On the basis of metrical, alliterative, and harmonic similarities, Plaintiffs alleged that Defendants’ song infringed their literary and musical copyrights. Defendants admitted that the lyrics and music had deliberately been created as to parody the Rodgers and Hammerstein number, but asserted that in the result, there had been no infringement whatsoever.
 
II. ANALYSIS
The court stated that the correct test in assessing whether the parody amounted to an infringement was whether it made use of a substantial part of the expression of the original work.  Applying the test of substantiality to the alleged infringement of the literary copyright, the court was unable to say that there was a serious question to be tried.  Plaintiffs’ attorney stressed the importance of the words “We got,” repeated several times, the only common expression in the two versions.  In the court’s judgment, it was neither quantitatively nor qualitatively a substantial part of “There Is Nothin’ Like a Dame.”  The court found that in themselves, the words would not be copyrightable as a literary work.  The most the words did, when combined with the other words in Defendants’ parody, was to conjure up the idea of the original, not the substance of it.
 
Coming to the question concerning the musical copyright, the court recognized Judge Astbury’s proclamation in Austin v. Columbia Gramophone Co. Ltd., that “Infringement of copyright in music is not a question of note for note comparison, but of whether the substance of the original copyright work is taken or not.  It falls to be determined by the ear as well as by the eye.”  The evidence in this case consisted of two main categories:  (1) reports on the technical musical elements; and (2) a survey conducted for Defendants.  Taking the general approach that a piece be judged by a person with a good musical ear and an untechnical knowledge of this sort of music, the judge detected some similarity in the basic structure of the two pieces, but stated that by no stretch could the one be said to be a slavish copy of the other.  The court recognized the good deal of originality contributed by King, but reiterated that the test is whether a substantial portion has been taken, not whether a substantial change or addition has been effected.
 
The court then turned to the report of the well-known conductor and composer, Harry Rabinowitz, for Plaintiffs.  On the formal musical elements, Rabinowitz made three points:  (1) the advertisement jingle could never have come into being without the existence of “There Is Nothin’ Like a Dame” and whoever shaped the jingle leaned very heavily on the rhythmic patterns, melodic shapes, and the overall structure of two sections of “There Is Nothin’ Like a Dame”; (2) overall, the harmony of the advertisement was strongly dependent on that of “There Is Nothin’ Like a Dame”; and (3) there was a very striking similarity in the use of alternating solo voices and chorus––in bars one to seventeen of “There Is Nothin’ Like a Dame,” different characters were given different parts with all the chorus joining in at bar fifteen, and exactly the same happened in the advertisement.  The court was not persuaded by King’s criticisms of Rabinowitz’s points, as they seemed to overlook one essential matter, which was that what lifts a work of art from the ordinary is the way that the commonplace elements are assembled.  From the hearing of the tunes and a consideration of Rabinowitz’s points and King’s affidavit, the court found that it could be arguable that a substantial part of “There Is Nothin’ Like a Dame” was present in the advertisement.  Thus, the court was unable to say, in relation to the question concerning the musical copyright, that there was no serious question to be tried.

As to the survey conducted for Defendants, the court criticized the test employed, that is, a piano version was played once only, whereas a television advertisement was normally played repetitively and included the words.  Accordingly, the court found these results to be a significant reinforcement of the view that there was a serious question to be tried.  In considering the balance of convenience, the court was not satisfied at all that any harm would fall on Defendants if they were prevented from running their advertisement for the short space of time that it would take for this trial to come on.  In conclusion, the balance of convenience was in Plaintiffs’ favor and interlocutory relief was granted, with order for a speedy trial.

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 Robert Cason and Daniel Müllensiefen:

An injunction was sought from the plaintiff who alleged that a parody created by the defendant for one of their clients infringed the literary and musical copyright in the work South Pacific. The question before the court was whether there was the potential for a case copyright infringement.

The injunction was granted on the grounds that it could be arguable that there was a case of musical copyright infringement based on the similarity between the song and its parody, however the case never reached court to be determined directly. As this case was an injunction the court did not have to make a definite decision whether copyright infringement had occurred, but after the report from two expert witnesses it did hold the level of similarity between the works raised a strong prima facie case of infringement.

Part A: The Chorus
Part B: The Verse

Experts Opinion:

"There is Nothin' Like a Dame' and whoever shaped the jingle leaned very heavily on the rhythmic patterns, melodic shapes and the overall structure of two sections of 'There is Nothin' Like a Dame'."

“Overall the harmony of the advertisement is strongly dependent on that of 'There is Nothin' Like
a Dame'."

“There is a very striking similarity in the use of alternating solo voices and chorus. In bars one to
seventeen of the original different characters are given different parts with all the chorus joining in
at bar fifteen. Exactly the same happens in the advertisement. The chorus is sung by everyone."

"At the end of the advertisement there is a repeat of the melody at bars A to D and very strikingly this is whistled and in my view is an imitation of what happens on page 39 of the sheet music of the original song where I have circled it.”
 
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Opinion by Judge Paul Baker

Opinion Text (PDF)