Wood v. Boosey -
ON composed for orchestra an opera in 1849 in Berlin. Died two months later.
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2 years later representatives for the estate commissioned one Brissler to adapt the opera from orchestra to the pianoforte alone.
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Copyright registration in the UK required the name of the author of the work, said ON, which was wrong because the new work was authored by Brissler.
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If the copyright has expired, a work based on a previous work has its own copyright.
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Easier to copy the new arrangement than to do it all over.
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While Brissler has not invited the tune nor the harmony, there is a certain composition to what he has done.
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Therefore, considered an original work.
Redwood Music Ltd. v. Chappell & Co. Ltd. -
Regards an arrangement as a more difficult exercise than that of translation.
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“Of course… there may be copyright in works of a comparatively humdrum nature, such as straightforward translations”
Establishing Copyright/Proving Infringement Grignon v. Roussel -
According to the plaintiff, around August, 1986, he composed a musical work CN7.
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Distributed to certain librettists and people in the artistic world in Montreal, hoping that a song would be eventually made from it.
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The next year a song came out with tune that was strikingly similar, but showed a different composer.
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Plaintiff brought an action for an injunction and damages for breach of copyright.
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Defendant claimed to have written year prior, and updated since.
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s 53(2) - A certificate of registration of copyright in a work is evidence that copyright subsists in the work and that the person registered is the owner of the copyright.
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Can the plaintiff, whose work was registered after distribution of the work of the defendant, who is also disputing its originality, benefit from the presumption created by s 53 and so more readily establish that he is the holder of a right?
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Point is of some importance with respect to to the burden of proof in establishing copyright.
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Some difficulty because it was registered after TLJ, to which the defendant claims they wrote the music.
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Registration has no effect on the actual existence of a copyright though, so doesn’t really change the case.
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s 34(3) says that if an action is brought by a plaintiff for infringement of his right, and the defendant challenges the existence of the copyright, the plaintiff’s work is deemed to be protected by copyright until proof of the contrary is provided the plaintiff is deemed to be the owner of the copyright.
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To succeed in an action, the plaintiff must show the following:
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That he has a copyright in the musical work
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That it is an original work
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That the defendant unfairly copied that
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He had access to the plaintiff’s work before composing his own, and that a substantial part of both works is very similar.
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Plaintiff’s copyright
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No real debate of the ownership of copyright to the plaintiff’s work.
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Originality of work
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Is the plaintiff’s work an original one?
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US precedents seem to indicate that a plaintiff in an action for copyright infringement has a prima facie right to a presumption of originality under s.53(2).
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Judge doesn’t follow this.
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Defendant’s expert witness didn’t really debate the originality of the plaintiff’s work, commented more on how the CN7 and TLJ were dissimilar.
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As the court has found that the plaintiff owns a copyright to an original musical work, it remains to determine:
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1 - whether the defendant’s work, which he also regards as original, bears sufficient objective similarity to that of the plaintiff to be the subject of an order by the court, and
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2 - whether it can be shown that the plaintiff’s work was the basis for that of the defendant.
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Resemblance between the two works
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Is there such a striking resemblance between the two musical works that the defendant’s constitutes an infringement of the plaintiff’s copyright?
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Only the first eight measures of the refrain are argued to have been infringed.
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The hook is the “attractive” part.
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Asking for a qualitative examination rather than quantitative.
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Canadian Performing Right Society v. Canadian National Exhibition Assn.
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Court found there was an infringement of copyright by a defendant who had copied between 5 and 32 measures (defendant v. plaintiff)
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“Question of infringement is not to be decided by note for note comparison, but whether the substance of the original work is taken or not. This falls to be determined by the ear as well as by the eye.”
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Case at hand, the similarity between the refrains is clearly noticeable.
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Expert witnesses
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Only one of five expert witnesses has extensive academic training in the classic sense.
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“same delivery and same hooks”
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Expert says the result of analysis forced him to rule out chance from the hypothesis.
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Defendant’s access to plaintiff’s work
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Witness said, categorically, had played the cassette for the defendant.
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Defendant did not recall having heard CN7.
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Too difficult to imagine the similarities resulting due to coincidence.
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In judge’s opinion, the direct and circumstantial evidence together with the striking resemblance of the melodies proven by experts and noticeable by the least attentive ear cannot be the result of coincidence or chance.
Drynan v. Rostad -
Plaintiff brought action alleging that in July, 1989, he composed a word entitled “FFW” and recorded it on cassette.
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In summer of 1990, defendant composed a word entitled HWAOTRA.
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Became the opening theme for a TV series hosted by him and produced by the CBC.
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Plaintiff heard song in 1993, and now alleges that the defendant’s song was strikingly similar to that of his own and an infringement of the copyright.
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Defendant said was composed independently, any similarities are purely coincidental.
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Song was played at a family reunion, played numerous times, a performance done by children.
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Defendant was retained to perform at the celebration under written contract.
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Twice, 5:15 and 7, arrived at 5 and left at 10.
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Defendant spent some time in the home.
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Plaintiff went to defendant after song was performed, and defendant said “nice song”.
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Defendant doesn’t recall that, or of hearing the song.
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Songs were very similar - expert evidence.
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Defendant’s expert evidence said they were both country music songs, could have come to same thing independently.
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Some similarities were basically general knowledge.
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Not identical but strikingly similar.
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Ruling:
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First test as set out in Francis Day & Hunter and adopted in Grignon has been met.
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Although not identical, the defendant’s work can be properly described as a reproduction of the plaintiff’s.
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Strong evidence provided by the plaintiff, not so for the defendant.
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Though honest, just didn’t have recollection, and said there was a possibility of having heard the song.
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“On the evidence adduced, ant to my ear, but for plaintiff’s song, the defendant’s song would not have existed.”
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In Canada, many issues are covered by Crowe, “The Song You Write May Not Be Your Own”
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Issue will be whether the non-melodic differences outweigh the melodic similarity in their musical effect.
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As a general rule, the larger the portion of music that is reasonably similar in both the plaintiff’s and defendant’s works, the greater must be the non-melodic differences, that is, rhythm, harmony, accompaniment and mood, in order that the defendant escape liability.
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