Coffey v Warner/Chappell Music Ltd. & Ors

In a copyright claim, the relevant copyright work is determined objectively by the court, not by the claimant’s choice of description. A claimant cannot isolate selected similarities from a larger work and treat them as a separate copyright work merely to establish copying. A constituent part may itself qualify only where it is sufficiently separable from the material with which it is combined to constitute an independent copyright work. Features relating principally to performance or interpretation, rather than composition, may not qualify as a musical work. Where the pleaded subject matter cannot in law constitute the relevant work, and amendment is not pursued, the claim may be struck out.

The claimant alleged that the defendants infringed copyright in a musical work said to comprise the combination of vocal expression, pitch contour and syncopation associated with the words “does it really matter” in her song Forever After. The alleged infringement concerned Madonna’s song Nothing Really Matters.

The defendants applied to strike out the re-amended particulars of claim under CPR Part 3.4(2)(a), alternatively for summary judgment under CPR Part 24.2(a)(i). The central issue was whether the selected features could constitute a separate musical work rather than merely parts or performance characteristics of the song as a whole.

1. The claim was struck out and dismissed with costs. The court preferred disposal under CPR Part 3.4(2)(a), although the result would have been the same under CPR Part 24.2(a)(i).

2. The first step in a copyright action is to identify the work or works relied upon. That is an objective question for the court. A claimant cannot define the copyright work by selecting only those features which appear similar to the alleged infringement. Such “similarity by excision” may create an artificial appearance of copying.

3. Copyright subsists in the work as properly identified. If part of a work is copied, infringement depends on whether that part is a substantial part, qualitatively or quantitatively, of the work as a whole. The claimant cannot avoid that inquiry by redefining selected elements as the work itself.

4. A constituent part of a larger entity may sometimes constitute an independent copyright work, but only where it is sufficiently separable from the material with which it is combined. The three features relied upon here were not sufficiently separable from the remainder of the song.

5. The pleaded features appeared, at least in substantial part, to concern interpretation or performance characteristics rather than musical composition. In any event, they could not properly be regarded as a separate musical work. The claimant declined to amend the claim to rely on Forever After as a whole. The claim therefore could not succeed.

Because the claimant was legally aided, enforcement of her liability for the defendants’ assessed costs was stayed without further permission of the court.