Plaintiff, Mood Music Publishing Company Limited, and Defendant, De Wolfe Limited, were both music publishers supplying background music for televisions programs based on works in which each company held the copyright. In December 1970, Plaintiff issued a writ alleging infringement of their copyright in a musical work entitled “Sogno Nostalgico,” composed by Armando Sciascia, and asking for an injunction and other relief. More specifically, Plaintiff complained that one Jack Trombey (also known as Jan Stoeckart) had, without their license, composed a musical work entitled “Girl in the Dark,” which reproduced their work, and that Defendant had, without their license, manufactured or authorized the manufacture of a gramophone record in large numbers on which “Girl in the Dark” was recorded, and that they had thereby infringed Plaintiff’s interest in the copyright in their own work, “Sogno Nostalgico.”
The action came on for trial in May 1973, when it emerged that Defendant was claiming prior publication, in 1960, for “Girl in the Dark.” The judge adjourned the trial to enable them to amend their defense to particularize the claim. When the action came on for trial again in October 1975, Plaintiff still relied on infringement but sought to adduce evidence of “similar facts” as relevant to the question whether the similarity of the two works was coincidental or due to copying. The evidence included three records: one a “trap order” commissioned on Plaintiff’s behalf in 1970, and the other two being recordings of two works issued under Defendant’s name bearing marked similarity to works of well-known composers that were still in copyright and that were also on the recording. Defendant, who had notice of the “trap order,” but not of the two other records, objected to evidence of “similar facts” being introduced into a civil action for infringement of copyright where there was no allegation of fraud or dishonesty and where they had not had proper notice. The judge heard the records played de bene esse and ruled that they were admissible on the issue of coincidence or copying. The judge gave leave to Defendant to appeal from his ruling and adjourned the trial of the action, which was later settled.
On interlocutory appeal, the judge stated the nature of the evidence sought to be admitted in more detail. The “trap order” was arranged in the following way. Plaintiff made a record of a distinctive piece of music called “Fixed Idea,” but wrote on the record, “Taken off air U.S.A.,” which was not true. It was not taken from a piece that had been broadcast in the U.S.A. Rather, it had been made by Plaintiff from their own copyright. Plaintiff then got an agent provocateur to take it to Defendant and ask them to make a new record from this piece of music. The agent provocateur and Defendant arranged that, in return for a sum altogether of £250, Defendant would make a new record from that piece of music. This is where Defendant fell into the trap. They made the new record, but they called it a Defendant work entitled “Vision.” Plaintiff said that the work “Vision” was a copy of their own “Fixed Idea,” and the judge noted that here, Defendant copied Plaintiff’s music and put it out to the world as if it was their own publication.
There were two other matters that Plaintiff desired to give in evidence. It appeared that records had been made by other publishers of music by Jean Sibelius, a Finnish composer, and Edward Elgar, an English composer, both of which were the subject of copyright. The court had these records played before them. Plaintiff said that Defendant had recorded music which bore a close resemblance to these musical works. The court also had Defendant’s records played before them. The court agreed that there was a very close resemblance so that one might well think that Defendant might well have copied them from the musical works of Sibelius and Elgar.
In dismissing the appeal, the court held that evidence of “similar facts” would be admitted in civil actions if it was logically relevant to the matter in issue, so long as it was not oppressive and was produced on fair notice to the other side. Moreover, the court held that where the issue was coincidence or copying, the probative force of the additional records showing similarity was relevant and that the trial judge had rightly ruled that the evidence was of sufficient probative weight to be relevant to this issue and should be admitted. Incidentally, the trial judge rejected evidence of other matters that were not of sufficient probative value. Accordingly, all three judges of the appellate court agreed that the appeal should be dismissed.
Robert Cason and Daniel Müllensiefen:
This case was referred to the Court of appeal on the grounds that the plaintiffs had acquired additional evidence against the defendants in the form of a trap order. At the court of first instance the plaintiffs were relying on a simple case of infringement involving Sogno Nostalgico, a work they owned the copyright in, and the defendants work Girl in the Dark. The plaintiffs brought the action initially on the grounds there was a similarity between these two pieces of work.
In addition to this the plaintiffs also brought “similar facts” in the form of three additional pieces of work. Two which were similar to other copyrighted work (not owned by the plaintiff, and one trap order; the plaintiffs had commissioned an agent to approach the defendants to ask for a rewriting of a song the plaintiffs owned and present as the defendants own. The defendants had notice of the trap order but not of the other two pieces of additional evidence. For these reasons the defendants appealed to determine whether such additional information could be admitted in a civil procedure. The appeal was dismissed and the parties settled the dispute regarding the original similarity between the songs, after the court of appeal decision.
Opinion by Judges Denning, Orr and Browne
Opinion Text (PDF)