Example Case - See You In Court
In the third version of the new song, the upper rhythm section – the harmonic accompaniment of synthesizer semiquavers and phased electric piano chords – is replaced by the electric rhythm guitar and acoustic piano parts from the existing song. Both add more of the flavour of the original, but by their common nature it is argued they cannot be considered copyrightable elements of a song.
Case for infringement
These rhythm parts do begin to identify the existing song more obviously at two key places. In the last bar of each 8-bar verse section there is a rest in the melody and the piano rhythm part briefly takes the limelight with a punchy syncopated figure, playing one E major chord and two F# major chords over an F# bass (in the recording this occurs at 17 and 36 seconds). This distinctive motif of just three notes, illustrated on the ‘musical evidence’ tab, is a significant part of the existing song as it anticipates the melodic shape and rhythm of the chorus melody line.
A similar moment occurs in the last bar of the first half of the chorus (59 seconds on the recording, also illustrated on the next tab), where again there is a rest in the melody for a bar, and the rhythm part comes briefly to the fore with a more melodic phrase. In copying these more significant aspects of the rhythm parts the new song moves closer to infringing, and these examples would undoubtedly play a part in any case for the claimant in a case.
Case against infringement
The rhythm guitar part of the existing song is a classic funk-style rhythm part, playing syncopated semiquaver chords, with the emphasis on the first and fourth beat of each bar. The rhythm piano part is slightly more unusual, again playing semiquaver chords, but in short motifs of three notes, creating more syncopation. While this piano pattern of rhythm accompaniment is perhaps less common, in isolation it is nonetheless initially just a series of chords of A and D major. Both rhythm patterns are commonplace in disco-funk music of the early and mid-1970s and cannot be considered generally to contain any copyrightable material in isolation.
The musical illustrations below show one of the two piano motifs that help to identify the existing song, heard here at 17-18 and 36-38 seconds in the audio. Whilst much of the rhythmic accompaniment of the piano and guitar parts simply adds harmony, in these two cases the accompaniment comes to the front, filling in a gap in the vocals, and takes on a melody part briefly.
See You In Court
(Simon Anderson) ©and ℗ 2015, Simon Anderson. Please note that copyright is only claimed in the original elements of See You In Court, and not in the elements that have been reproduced from the existing song for the purposes of this case study.
It is felt that two examples of rhythm parts spanning just three bars of a 36-bar song would not constitute a substantial part qualitatively and therefore would not be found to infringe. This is different to the Hawkes case, where the same quantative proportion was used and found to infringe (20 seconds of a four-minute piece = 1/12th), but the 20 seconds there featured the whole iteration of the main melody, which was deemed to be qualitatively significant.