Warner Bros. v. Dundas

I. FACTS

The first Plaintiff, Warner Bros. Music Limited, was the exclusive sub-publisher of the Tom Waits song, “Martha,” which appeared on albums entitled CLOSING TIME and ASYLUM YEARS, in the United Kingdom.  The second Plaintiff was the owner of the worldwide copyright in the song.  The second Plaintiff derived its title through the third Plaintiff, which in turn had an exclusive songwriting agreement with Tom Waits.  Plaintiffs claimed that the Defendants infringed the copyright in “Martha” in creating a form of television advertisement for the third Defendant, The Kenco Coffee Company Limited, a subsidiary of General Foods Limited.  After Tom Waits saw this advertising and contacted a representative of the first Plaintiff, an interlocutory injunction was sought to restrain the further showing of the advertisement until trial.

 The lyric of “Martha” included the following verse:

“And I feel so much older now; you’re much older, too.
How’s the husband and how’s your kids?  You know that I got  married, too.

 Lucky that you found someone to make you feel secure,
‘Cause we were all so young and foolish; now, we are mature.”

The lyric of the television advertisement, seemingly devised by a copywriter and an art director employed by the second Defendant and given to the first Defendant to provide a musical soundtrack, included the following verse:

 “Hope you don’t mind me dropping in; it’s been so many years.
Remember when we said goodbye?  I kissed away your tears.
You got married, you had kids.  I travelled half the world.
Now, here you are, a woman, but I still see the girl.”

II. ANALYSIS

Plaintiffs consulted a well-known musicologist, who in his report said that Defendants stole the following from Plaintiffs:  (1) the whole concept of ringing up on the spur of the moment (or dropping in on) an old flame to talk about old times; (2) the complete musical ambience, which is a recreation of the sort of café music so popular in the ‘30s and ‘40s when the protagonists of the song may have been supposed to be young.  This, according to the musicologist, was achieved by:  (a) using the melodic shapes and supporting harmonies typical of the popular “light” music of the period; and (b) reproducing the characteristic sound of a café band in the accompaniment (i.e., strings and piano).  Then, having referred to variations being, as he said, deliberately intruded, in particular the different contour introduced into the melodic line, the musicologist said, “The whole show is given away by the cadence, particularly the cadence of the first line of the advertising melody, where it is set to an actual quotation from the words of ‘Martha.’”  What the musicologist was referring to were the words “It’s been so many years.”

Defendants instructed a well-known conductor and composer, Harry Rabinowitz, who drew attention to the similarities between “Martha” and other popular songs, in particular what he called a “hefty melodic quotation” from “Old Man River” in the chorus.  Rabinowitz took issue with the musicologist on his statement that the musical ambience was that of the ‘30s and ‘40s, a period of which he had direct experience.  As regards the music for the phrase “It’s been so many years,” Rabinowitz described the musicologist’s argument as “specious” and gave his reasons in the following passage:  “The melody of the two phrases in the two compositions is quite different.  Of course, by making a number of changes[,] one can make the two look the same[,] as [the musicologist] has tried to do, but the ear does not make these alterations, and in what is heard, one is quite different from the other.”

Both Plaintiffs and Defendants claimed if, in Plaintiffs’ case, an injunction was refused, or, in Defendants’ case, an injunction was granted, irreparable and unquantifiable damage would be caused.  Although the court thought there might have been an element of exaggeration in Defendants’ claims, it was prepared to accept that the withdrawal or change of the advertisement would have a significant effect not only on the business of the first Defendant, but also on the reputation of the second Defendant, which would be difficult to quantify and recompense in damages.  Turning to the setting and conception of the two works and their mood, the court noted the following similarities:  (1) both pieces dealt with an occasion when a man telephones or visits an old flame; (2) in both cases, the man and the woman had married and, in the case of the woman, she had a family.  According to the court, the resemblance ended there.  While the mood of “Martha” was nostalgic and romantic, the advertisement was quite different, leading with the dissolution of all tension very effectively to the advertising line, “Kenco.  It’s what best friends share.”  Turning to the musical accompaniment of the two works, the court was unable to detect any resemblance between “Martha” and the advertisement.  While the phrase “It’s been so many years” was common to both works, it was not suggested that that in itself was sufficient to find a case of substantial copying.  As such, the court dismissed the application for an injunction.

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The cases concerned an application for a interlocutory injunction to restrain further showing of a Kenco TV advert which the plaintiff claimed infringed copyright in Tom Waits song Martha.

During the production stage of the advert the producers had explored the possibility of using the plaintiffs track in the accompaniment of an advert. The advert featured a reunion between two old friends (Male and Female) who had once been very close with an embarrassing moment until they realize it is just a social call with the line “it’s been so many years”.

There had been some reservation about using the track in question and the defendant’s argued that the decision had been made not to use the track. Instead they commissioned an independent musical soundtrack to be produced.

Referring to Williamson Music Ltd in order to grant an injunction there must be a very, very strong prima fascia case for infringement. On listening to both sets of music the judge was unable to detect any resemblance between the tunes, and although the music for the phrase “its been so many years” bears a similarity when examining it on paper the sounds of each to the ear is very different.

Dr Bush (For the plaintiffs)

“(1) The whole concept of ringing up on the spur of the moment (or dropping in on) an old flame, to talk about old times . . (2) The complete musical ambience — which is a recreation of the sort of cafe music so popular in the 30s and 40s when the protagonists of the song may have been supposed to be young. This is achieved (a) by using the melodic shapes and supporting harmonics typical of the popular ‘light’ music of the period and (b) by reproducing the characteristic sound of a cafe band in the accompaniment, ie, strings and piano”.

Mr Harry Rabinowitz (defendants)

He draws attention to the similarities between Mr Waits’s song and other popular songs, in particular what he calls a hefty melodic quotation from “Old Man River” in the chorus. He takes issue with Dr Rush on his statement that the musical ambience is that of the 30s and 40s, a period of which he has direct experience. As regards the music for the phrase “It’s been so many years”, he describes Dr Bush’s argument as “specious” and gives his reasons in the following passage: “The melody of the two phrases in the two compositions is quite different. Of course, by making a number of changes one can make the two look the same as Dr Bush has tried to do, but the ear does not make these alterations, and, in what is heard, one is quite different from the other”.

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