Malmstedt v. EMI Records

Comments by Paul Sipio (Penn Law School) and Robert Cason & Daniel Müllensiefen (Univ. London)

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Paul Sipio (Penn):

I. FACTS

Claimant, Stephan Malmstedt, claimed damages and injunction for infringement of copyright.  He alleged that a pop song called “Sleeping in My Car,” composed by the second Defendant, Per Gessle, a member of the group Roxette, and recorded on the first Defendants’ label, EMI Records Limited, infringed his musical copyright in an earlier work called “Jenny and I.”  Amongst the people Claimant tried to interest in his songs were the head of the A&R department at EMI Sweden, Kjell Andersson.  After listening to the tape and keeping it for about a week, Andersson was interested in a couple of the songs, but with somebody other than Claimant as the recording artist.  Claimant wanted to the record the songs himself and asked for the tape back; it was duly returned.  Shortly after this, Claimant approached a Swedish artist, Niklas Stromstedt, who had been a recording artist at EMI earlier in his career and was a friend of Gessle.  After keeping the tape for six months, Stromstedt returned it saying that he had approached two companies, WEA and BMG, without success.

After nearly three years of continuing to regard the songs as his hope for a break in his career, Claimant heard “Sleeping in My Car” and concluded that the chorus from “Jenny and I” had been copied.  First, Claimant complained to STIM, the Swedish equivalent of the Performing Rights Society.  The Committee’s view was that, while there were similarities in the harmonic structure, there were also several differences, and that where the musical phrases and chord structures were similar they were not unique.  The Committee also said that similarities in musical phrases were not unusual in this style of music.  Next, Claimant recorded a demonstration of the similarities between the choruses of the two works and went to the police with a criminal complaint.  The police obtained an opinion from a university lecturer, who said that, while there were certain similarities between the choruses of the two songs, these were insufficient to indicate plagiarism, and that the chorus of “Sleeping in My Car” had its own characteristics which distinguished it from “Jenny and I.”  The police decided not to prosecute.

II. ANALYSIS

Both the Defendants’ expert and the joint expert appointed by the court reached the same conclusions that the Committee and university lecturer had earlier reached, namely that while there were certain similarities in the chorus of both works, the similar features were commonplace and did not indicate copying.  Claimant also gave expert evidence on his own behalf, both by way of detailed written report and orally.

On the fundamental issue of whether Gessle copied Claimant’s work, Gessle said that he had never heard “Jenny and I” when he composed “Sleeping in My Car.”  The judge did not attach any weight to Claimant’s evidence that Gessle had purportedly given different explanations as to how and why he composed “Sleeping in My Car.”  Andersson also said that he definitely did not play Claimant’s demonstration tape to Gessle for two reasons:  (1) he regarded it as unethical to play the demonstration tape to another recording artist without the permission of the composer; and (2) Gessle recorded his own compositions, or sometimes those which he had co-composed with another writer, and would not have been interested in Claimant’s compositions.  The judge said that Andersson was a credible witness and that his evidence made perfect sense.  Moreover, Stromstedt gave evidence and said that he was certain that he had not played the demonstration tape to Gessle, whom he had seen rarely if at all during the relevant period.  This claim was supported by the fact that, in his note returning the tapes, Stromstedt said that he had tried WEA and BMG; no reference was made in the note to trying to interest Gessle.

Because Claimant accepted in cross-examination that, apart from the possibility that Andersson had played the demonstration tape to Gessle, he could think of no other way that Gessle could have heard it, Claimant could only succeed on the issue of copying by demonstrating similarities between the two works which could not be coincidental.  And since such a degree of similarity was certainly not apparent from hearing them, Claimant’s case depended substantially on an assessment of the expert evidence.  The court found the joint expert to be an impressive and convincing witness, but had reservations as to the objectivity of the Claimant’s expert evidence.  The court then examined the following similar features relied on by Claimant:  (a) the chord sequences; (b) similarity and duration of the first four vocal phrases; (c) copying of the notes in the harmony vocal of the “hook” of “Jenny and I” and the lead vocal of the “hook” of “Sleeping in My Car”; (d) similarity in musical shape or contour; (e) copying of the “literary phrase structure”; and (f) the timing of chord changes, or “chord structure.”

Regarding the chord sequences, the court accepted the joint expert’s view that the similarity in the chord sequence was of no significance.  In analyzing the chord sequences in the chorus of the two songs, the joint expert concluded that five out of the nine chords were the same, two pairs and a single.  The first pair was a C and G, which he described as the most common pairing of all the chords in the scale.  The second pair was a F and C, the second most common pairing, and the final chord was G, the second most common chord to appear in the scale.  Therefore, the joint expert concluded that such coincidences as there were in the two sequences were common chords in commonplace successions.

On the similarity and duration of the first four vocal phrases, the court accepted the joint expert’s evidence that the pitches and the rhythms, of which these phrases were constructed, were all different (apart from the occasional note).  The only similarity was in the actual duration of the first four phrases in each chorus, in terms of the number of beats they occupied (but not in the musical contents), but the court did not consider this to be a significant factor.

In terms of the copying of the notes in the harmony vocal of the “hook” of “Jenny and I” and the lead vocal of the “hook” of “Sleeping in My Car,” the court again accepted the joint expert’s conclusion that there was no musical significance in this comparison.  While the joint expert agreed that the harmony line in “Jenny and I” had the pitches E-C-C-C and that the melody line in “Sleeping in My Car” had the pitches C-C-D-C-E, he pointed out that not only did E occur at the beginning of the first and at the end of the second, “Sleeping in My Car” also had D, which did not occur in “Jenny and I.”  Moreover, there was a different number of notes and there were different rhythms, in that Claimant’s work had four notes ending with an anticipation whereas “Sleeping in My Car” had five notes ending on the first beat of the next bar.  Thus, “Sleeping in My Car” did not have the same rhythm backwards, nor the same order of pitches.

Regarding similarity in musical shape or contour, the court accepted the joint expert’s evidence that the similarities were not significant, since the notes were very common; also, the end notes did not coincide in time.  The Defendants’ expert stated that there was a degree of similarity with regard to the musical shape or ‘contour’ of the second and fourth phrases, respectively found in bars 1 and 2, but they were, nonetheless, different.  However, the joint expert analyzed the chorus melodies of the two pitches for both choruses, and concluded from his analysis that there was almost no coincidence of pitches between the chorus melodies of the two works and no two successive pitches at all occurring in common between them.

On copying of the “literary phrase structure,” the court did not regard the similarity as having any significance at all, especially as the similarity was only in one chorus.  The Defendants’ expert identified similarities in the structure of the choruses, which was relied on by Claimant as evidence of another similarity in the work as a whole that contradicted Gessle’s evidence that he never heard “Jenny and I.”  The most obvious similarity in the literary phrase structure was that, in each of the choruses in each of the works, the hook line or catchphrase was sung in lines 1 and 3 and followed by answering phrases in lines 2 and 4.  However, Claimant accepted that this was a commonplace device; his main point was that in one of the choruses, the hook line-answering phrase sequence was broken at the same place, in line 5 with two new phrases and an end phrase.  Neither the Defendants’ expert nor the joint expert consider that this point added anything to Claimant’s case and nor did the court.

In terms of the timing of chord changes, or “chord structure,” the court found that much weight could not be placed upon a similarity which Claimant, who had obviously been very concerned about this matter for several years, was only able to detect some weeks before the trial.  Rather, the court again sided the joint expert’s finding that there was a significant difference between the timing of the chord changes, in that there were “pushes” or “anticipations” in the chord changes in “Sleeping in My Car,” whereas in “Jenny and I,” all the chord changes except two were on the bar line, without any pushes/anticipations.

Having come to the conclusion that the alleged similarities taken individually did not indicate copying, the court considered them as a whole and found that this was not such a case in which each similarity on its own may be coincidence, but in which it is not credible that all similarities taken together are coincidental.  In so doing, the court accepted the joint expert’s view that the whole of the similarity was not greater than the sum of its individual parts.  Therefore, the court found, on a clear balance of probabilities, that there was no copying and that what was alleged to have been copied was not substantial.

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Robert Cason and Daniel Müllensiefen (Univ. London):

Opinion by Judge M. Strauss

Opinion text (PDF)