Francis Day and Hunter vs Sydney Bron
1963 • Decided • England and Wales
Claimant Work: In A Little Spanish Town
Defendant Work: Why
A significant case in UK music copyright law was brought by music publishers Francis Day & Hunter (hereafter FDH). It was the first time that plagiarism of an original musical work had been considered, and the law reports provide a valuable amount of interesting detail on the musical issues considered by the courts. FDH jointly owned the copyright of the song In A Little Spanish Town (hereafter Spanish Town), with Leo Feist Inc. Spanish Town was written in 1926 by Mabel Wayne, with lyrics by Samuel Lewis and Joseph Young.
The song had enjoyed enduring popularity since its release, with widespread circulation both in sheet music and recorded form, and regular broadcasting. In 1960 FDH and Leo Feist issued a writ against Sydney Bron of Debmar Publishing Company Limited, concerning distribution of the song Why, which had been composed in 1959 by Peter de Angelis, with lyrics by Bob Marcucci. The writ sought an injunction to prevent reproduction and distribution of the song Why, without their consent, and also an inquiry over the damages for infringement of copyright.
What makes this a difficult case is that the chord progression used by both is identical. In addition the melody lines follow a similar shape with almost the same notes. However, the chord progression and the melodic shape are both commonplace.
Case for infringement
At the first trial the claimants contested that the first eight bars of the chorus of Spanish Town were reproduced either consciously or unconsciously in the first eight bars of Why.
The claimants appealed that the copying was unconscious with the contention that reproduction of a substantial part and proof of access to the original made unconscious copying “irrebuttable”. At the appeal hearing both sides agreed on an independent musical expert, Professor Leslie Murchie of the Guildhall School of Music, to demonstrate the two songs and other relevant musical illustrations. Counsel for the claimant argued that, as substantial similarity had been proved, and access to the original work by de Angelis was possible, that was sufficient to protect the original copyright, unless the defendant can “prove affirmatively that he did not have access”. They made the interesting point that “the issue has not arisen before because there have been no cases of unconscious copying. The cases were decided on . . . whether there had been conscious copying. This is a very serious matter for the publishing world. Unconscious copying shows less similarity than conscious copying”.
In the absence of any UK precedent for plagiarism cases the claimants drew on some US cases, such as Fred Fisher Inc. v Dillingham and Edwards And Deutsch Lithographing Co. v Boorman to show that “an action for copyright infringement will not fail because the infringer was not caught in the act, where access may be inferred or found circumstantially”, and where unconscious copying had been shown to be an infringement. They drew the clever analogy with the sleepwalker, who “is walking just the same although he is unconscious of doing so”, and the printer, who “may be guilty of infringement, though he has no conscious intent”. They offered the rather weak proposition that, because the defendants could not show the court another work that more closely resembled Spanish Town, the court “ought to infer a causal connection” between the two works. This causal connection, they argued, would therefore prove infringement under their interpretation of the 1956 Copyright Act (s2), which restricts the “reproduction” of a copyright work “in any material form”.
Case against infringement
Not surprisingly the defence rebutted the suggestion that a high degree of similarity would outweigh the composer’s sworn denial of copying. They quoted Mr Justice Luxmoore in Ricordi v Clayton Waller, “there can be no infringement by an identical work if it is arrived at independently”.
The defendants denied infringement. Peter de Angelis, the composer of Why, gave evidence that he had neither consciously copied nor heard Spanish Town.
Only two similarities between the two songs were noted by the judge. The first concerned the melodies, where there was a “noticeable correspondence between the two songs”. This correspondence is not exact, however, and composer de Angelis pointed to Puccini as an influence for the shape of his melody. (Italian composer Giacomo Puccini was still protected by copyright at that time, having died in 1924, though de Angelis was referencing only the style of Puccini as an influence in his melodic shapes, rather than pointing to a specific melody of Puccini.) The second similarity was in the identical harmonic structure, though as this was commonplace in popular music of the 20th century the similarity was deemed “insignificant”.
Of the several differences between the songs the judge highlighted:
- the time signatures of the two songs (Spanish Town in 3/4 and Why in 4/4), though this was not considered a decisive factor, as many tunes can be transferred from one time signature to another without affecting their identity adversely;
- differences in the rhythm of the melody
- a significant difference in the third and seventh bars, where Spanish Town holds a long single note, and Why moves down to a second, lower note. Mr de Angelis gave clear evidence that this difference did not come from the requirements of the words, but was a deliberate musical choice made by him before the words were added;
- a structural difference between the two songs, with Spanish Town introducing a contrasting theme after the first eight bars, while Why develops the same theme.
It was observed that the theme of Spanish Town is made up of “commonplace elements or . . . clichés”. Examples were presented by the defence of similar combinations of notes in existing non-copyright musical works. Examples were also given by the defence of the song Let Us Sing Merrily, and a 19th century Austrian dance tune, both of which employed the same notes as Spanish Town, but with a different effect produced in rhythm, to show that identical notes in themselves do not constitute an infringement.
In A Little Spanish Town
(Wayne/Lewis/Young) © MPL UK Publishing/Redwood Music Ltd/EMI United Partnership Ltd. Recording by Paul Whiteman and his Orchestra ℗ 1928.
(de Angelis) © Universal/MCA Music Ltd. Recording by Frankie Avalon ℗ 1959 Chancellor Records, transposed here from the original F major for ease of comparison.
The evidence of Peter de Angelis that he had neither consciously copied nor heard Spanish Town was accepted. The court agreed that there was a degree of similarity between the eight bars in question, but also agreed that there were sufficient differences to admit the possibility that Why could have been conceived independently.
Mr Justice Wilberforce summarised that, individually, the musical observations above are “perhaps in themselves small points”, and referred to some as points for consideration by “professionals”. He urged that in considering these points “one must not lose sight of the musical character and aural appeal” of the whole work, echoing the sentiments of Mr Justice Astbury in Austin v Columbia that potential infringement should be considered by the ear as well as the eye.
He reached the conclusion that there was “undoubtedly a degree of similarity” between the songs, but balanced this with the observation of “certain differences . . . real enough to take into account when one is considering whether it is possible that so similar a tune as Why could have been developed by independent creation rather than by imitation.” The claimants would have to prove that the similarity arose out of an act of copying, either conscious or subconscious.
He accepted the composer’s evidence that he had not copied Spanish Town, and was not persuaded that he must have heard Spanish Town because of its enduring popularity. There was insufficient evidence to infer that de Angelis must have subconsciously copied Spanish Town and therefore Judge Wilberforce dismissed the case.
###The Appeal Decision
At appeal Lord Justice Willmer, in passing his judgement, made the point that for subconscious copying to be considered an infringement, it would have to be proved that the infringing composer was familiar with the original work. He dismissed the appeal, finding that the case turned on a question of fact.
Lord Justice Upjohn admitted that the question of subconscious copying was difficult, and possibly a contradiction, with the word “copying” implying a conscious act. He discounted the two US court decisions on subconscious copying as being too circumstantially different to permit comparison, and observed that the American statute is “markedly different”. In agreeing entirely with the trial judge’s acceptance of de Angelis’s testimony that he did not copy, nor even know Spanish Town, he found no need even to consider the question of whether unconscious copying was an infringement of copyright, saying it is always down to the claimant “to prove that the alleged infringement is not the independent work of the alleged infringing author or composer”.
Lord Justice Diplock observed that the word “copy” is not used at all in the Copyright Act 1956 nor in the previous 1911 act, but it is established that two elements are necessary to constitute copyright infringement: firstly sufficient objective similarity; and secondly the copyright work “must be the source from which the infringing work is derived”. There was no way to prove unconscious copying without showing conclusively that the composer was familiar with the original work.
The case failed ultimately because the similarities that did exist were found to be commonplace, and although de Angelis could potentially have had access to the original work, this could not be proven. Copying could therefore also not be proven. FDH v Bron proved influential in subsequent trials for the ‘substantial reproduction’ test it applied, notably in the 2011 Australian case of EMI Songs Australia Pty Limited & Anor v Larrikin Music Publishing Pty Ltd. The key difference in that case was that the defendants did not deny having heard the claimants’ song, meaning a causal connection between the works was established. Down Under had copied two bars (or half) of the four-bar melody to Kookaburra.
In his judgement, Mr Justice Wilberforce provided an interesting body of musical evidence as to both the similarities and differences, making the salient point that many witnesses “represented different attempts to put into words what is ultimately a matter for the ear”. The verse of Spanish Town was not considered in the case, which focused on the eight-bar opening chorus only.