EWHC (Ch), All E.R. 349 (Eng.)
“Where are You Now”
Philippou (“Manakiza”), Simon Stirling, Scott English
“Where are You”
Analyses and Comments by Paul Sipio (Penn Law School) and Robert Cason & Daniel Müllensiefen (Univ. London)
Paul Sipio (Penn Law School)
Plaintiff, Marianne Creagh (professionally known as Marianne Cray), composed and owned the musical and literary copyright subsisting in a song called “Where Are You Now.” Plaintiff claimed that Defendant, Hit & Run Music Publishing Limited, infringed these rights, after hearing what she took to be the chorus of her song in another song called “Where Are You.” Plaintiff first heard “Where Are You,” sung by the female pop artist professionally known as “Imaani,” in 1998 while watching a television trailer for the Eurovision Song Contest.
Several years prior to the alleged infringement, Plaintiff began a relationship with a representative of Defendant company, wherein that representative arranged for Plaintiff to record “Where Are You Now” with three different producers. Thereafter, the representative of Defendant company purportedly decided the song needed a different singer and pressured Plaintiff to sign her song to him, making what Plaintiff understood to be threatening statements. That same representative of Defendant company was the executive producer of “Where Are You.”
The court examined the following alleged similarities and their significance: (a) the songs’ titles; (b) the words of the hook lines; (c) the melodic notes of the hook lines; (d) the melodies of the songs; (e) the lyrics of the songs; and (f) the “message” and “story” of the songs’ lyrics. Regarding the songs’ titles, the court concluded that “Where Are You Now” and “Where Are You” were commonplace titles. In terms of the words of the hook lines, the court noted that the words “where are you now” appeared in the chorus of each of the songs. Nevertheless, the court found no infringement, particularly because the songs’ titles used these same words as well.
Regarding the melodic notes of the hook lines, the most notable and consistent feature of each phrase was the final three note descent to the tonic note A (marked as “descending third”). The relevant notes in the case of “Where Are You Now” were: C-B-A-A and, in the case of “Where Are You,” were: B-C-B-A. The court accepted the experts’ evidence that these notes were based on notes 1, 2, and 3 of the scale and that a large number of pieces in the repertoire of contemporary and classical music are based on them. Furthermore, the court believed that the phrases were significantly different in that the phrase in “Where Are You Now” commenced on the third degree of the scale and descended by scale step to the tonic. By contrast, the phrase in “Where Are You” commenced on the second degree of the scale and ascended to the third degree before descending by scale step to the tonic. Moreover, although the court accepted one of the expert’s evidence that both phrases were similar in that they both commenced after a quarter rest and had similar durations and rhythms, these, too, were found to be commonplace.
In terms of the songs’ melodies, the experts and the court agreed that save for the melodic notes of the hook line, the melodies of “Where Are You Now” and “Where Are You” did not have any significant similarity. Regarding the songs’ lyrics, the court found that the similar images evoked in the subject matter of the songs (e.g., faraway faces; falling leaves) were commonly used and not original. Finally, addressing the “message” and “story” of the songs’ lyrics, the court, while recognizing that each song was a love song about a missing or absent person, believed that the setting of these similar images was rather different in each of the songs.
Thus, the court held that the similarities relied upon did not amount to a substantial part of the musical and literary work embodied in “Where Are You Now.”
To further support the conclusion that the similarities found between the two songs did not raise an inference of copying, the court discussed how “Where Are You” came to be written. Each of the three writers of “Where Are You” were found to have not deliberately set about producing a variation or reworking of “Where Are You Now” even though there was not a clear recollection regarding the process of creation. Furthermore, the court accepted the Defendant company representative’s testimony that he first learned of “Where Are You” after Imaani recorded a preliminary version of the song. However, the court questioned whether the songs’ similarities were arrived at independently upon considering evidence that one of the writers of “Where Are You” and the representative of Defendant company met to discuss the possibility of working with and producing Plaintiff. Nonetheless, the court accepted the evidence of the Defendant company representative and concluded that Defendant company had not infringed the copyright subsisting in the musical or literary work embodied in “Where Are You Now.”
Robert Cason and Daniel Müllensiefen (Univ. London)
The plaintiff, Ms Cray, had composed and owned the copyright in the song Where Are You Know (WAYN). Hearing the defendant’s work Where Are You (WAY) on a trailer for the 1998 Eurovision song contest, the plaintiff issued proceedings arguing her copyright had been infringed.
The casual connection was argued to exist through the plaintiff’s and the defendant’s works sharing the same executive producer. In addition Ms Cray alleged, although the court did not except her evidence, that the executive producer had wanted to use another singer for her song and had threatened to take her song away.
The court was asked to address six specific claims of copyright infringement; four based on literary component of the work (the title, words of the hook line, the lyrics and the story conveyed by the song) and two on musical aspects of the work (Melodic notes of the hook line and the overall similarity of the melody).
The action was dismissed as the similarity between the hook lines in both pieces were not a substantial part of the work and no other similarity between the melodies as a whole were identified. In addition there was a lack of evidence in establishing a casual connection of whether the defendant had access to the plaintiff’s song.
Melodic Notes of the Hook Line:
Emphasis was placed on the final three notes descent to the tonic note A (marked descending third on notation), and considered the use in each work of only three chords: D minor [IV], E major [V], and A minor [I]), although this was not in the end pursued as a relevant feature. The relevant notes in WAYN were C-B-A-A and in WAY B-C-B-A – the experts gave evidence that these notes are based on the notes 1, 2 and 3 of the minor scale which is common in a large number of works. The judge believed there was a significant difference between the two works as; “the phrase found in WAYN commences on the third degree of the scale and descends by scale step to the tonic. By contrast, the phrase found in WAY commences on the second degree of the scale and ascends to the third degree before descending by scale step to the tonic” Melodies (overall):
“The experts differed in their opinions as to the melodies. Professor Swanston believed that in each song the focus on the final phrase was built up by similar cumulative harmonic, rhythmic and melodic means. Mr Oxendale thought there was no similarity other than the common use of the notes C-B-A. In the end Professor Swanston accepted that there was no similarity between the chord sequences of the two works and that, save for the 4 note melodic phrase C-B-A-A, there was no commonality in the melodies.”
Opinion by Judge David Kitchin
PDF text: Creagh v. Hit and Run Music