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Eurovision contestant and Rudimental come out on pop in copyright dispute

19 August 2021. Published by Alessandro Cerri, Senior Associate and Jessica Pease, Trainee Solicitor

The High Court has rejected a claim brought by one half of a duo who appeared on the Voice UK – the claim was brought against Eurovision 2021 contestant James Newman and members of Rudimental for allegedly infringing the copyright in one of her songs.

Background – time to face the music

Kelly-Marie Smith composed and wrote a song called "Can You Tell Me" which had never been released commercially, but which was acoustically recorded for a promotional video in October 2007. 

Various members of Rudimental, together with James Newman and Edward Harris, composed and wrote the song "Waiting All Night" which was released as a single and in an album by Rudimental in April 2013. 

Smith alleged that the defendants copied the lyrics and melody of the chorus from Can You Tell Me. During the trial, it transpired that the copying allegation actually related only to James Newman, as the other defendants' contributions related to aspects of the song which were not said to have been 'copied'.

The decision – band new or copied? 

(i) similarities

The Court held that, despite the similarities, including repetition of the same phrase ("tell me that you")  sung to four semi-quavers and the melody placing stress on certain words, there are important differences between the two songs; such as, for example, the same words being sung to different notes in each song. It was also held that the phrase "tell me that you need me" was a commonplace expression and not particularly original, making it unsurprising that two people writing a popular song would use that phrase. The melody was also simple and primarily driven by the words. 

(ii) availability of and access to Can You Tell Me

Although the promotional video containing Smith's song was available on social media sites, the clip of the video which contained the song only started 12 minutes into the video. The judge saw no direct evidence that James Newman ever heard Can You Tell Me before composing Waiting All Night – it was highly unlikely that the video created in 2007 was being promoted in 2012 when Waiting All Night was composed and the suggestion that Newman would have heard the claimant's song through "overlapping circles" was based on tenuous connections. 

(iii) evolution of Waiting All Night

James Newman provided contemporaneous evidence by way of a voice memo as to how he composed the song; he wanted to compose a hit song for Rudimental, similar to that recently composed for Rudimental by his brother, John, called "Feel The Love". The judge held that Newman had a basic idea for the start of the song before recording the voice memo, but made up the rest on the spot, with the allegedly copied phrase "tell me that you need me" and melody emerging through trial and error. 

Comment

When considering whether a defendant has copied a copyright work, the Court must determine whether the works are sufficiently similar and (assuming they are) consider which of the following four possible explanations as to what has caused the two works to be so similar is most likely:  (a) the defendant has copied the claimant; (b) the claimant has copied the defendant; (c) both parties have used a common source to create their works; (d) complete coincidence.  

Where there is a sufficiently high level of similarity, and it can be shown that the defendant had access to the claimant's work whilst creating its own, there is a presumption (that can be rebutted with evidence) that the defendant has copied the claimant.  From a practical perspective, these cases often turn on the documentary evidence available in relation to the origin or creation of the works in question.

In reaching its decision in this case, the Court was clearly persuaded by the evidence that Newman adduced regarding his independent creation of his work.  It is not enough to merely show that the relevant lyrics or melodies of a song are materially similar (or even the same).  It is a timely reminder that all composers should maintain a contemporaneous record of their creative process in order to demonstrate exactly how a song was composed. This is particularly important where simpler or more common phrases or melodies are used, as that may present more of a risk of two or more composers creating the same or similar works.