The Case

Williamson Music, the copyright owners of Rodgers and Hammerstein’s musical South Pacific, obtained an injunction against advertising agency The Pearson Partnership Ltd, who had been commissioned by National Express Limited to create a television commercial for their Rapide service. The words to the commercial were created by Pearson staff and given to composer Denis King to set to music.

Williamson contested that the commercial infringed the copyright in their song There Is Nothin’ Like A Dame. The commercial first aired on 5 May 1986, and was immediately spotted by a manager of MCPS, the collection society that licenses copying of music, as being a potential infringement. The manager informed the publishers the next day, and Williamson sought an injunction to restrain further showing of the commercial pending a trial for alleged infringement of copyright.

This was a more difficult consideration for the court, as the copying was not so obvious as in the cases of Mood Music or Warner/de Wilde. At the hearing, King presented a sworn affidavit that stated “I was told by the first defendants that a parody of There Is Nothin’ Like A Dame was wanted”. He states that he was “not altogether happy with this idea” – parodying words is fairly easy, but “it is not so easy to make a recognisable parody of a tune within the space of a few seconds of TV time, unless the tune is highly original or unusual”. Pearson’s lawyers confirmed that the music “features an affectionate parody”, but they did not accept that it infringed any copyright of the Williamson work.

Case for infringement

The claimants stated that Richard Rodgers was clear in his will that he wanted his “artistic integrity” to be preserved after his death, and that his reputation must not be sacrificed to commercial success. They said that it was well-known throughout the advertising industry that the publisher’s policy was “not to license the use of Rodgers & Hammerstein music and lyrics for advertisements of this nature”, nor to allow any arrangements or parodies to be made of the original works.

Williamson’s musicologist Rabinowitz noted similarities in the lyrics between the two, and particularly the substitution of “dame” with “Elaine” in the commercial version. He pointed out similarities in rhythmic patterns, melodic shapes and overall structure, harmony and alternating solo voices with chorus.

For comparison, the lyrics are presented below.

There Is Nothin' Like A Dame

We got sunlight on the sand, we got moonlight on the sea. We got mangoes and bananas we can pick right off the tree. We got volley ball and ping pong and a lot of dandy games. What ain’t we got? We ain’t got dames!

There is nothin’ like a dame, nothin’ in the world. There is nothin’ you can name that is anythin’ like a dame.

(Rodgers/Hammerstein) © Williamson Music

You've Just Got To Meet Elaine

We got coffee, we got tea, we’ve got toilets if need be. We’ve got films on vi-de-o so there’s lots for you to see. We’ve got seats so you can lay back, just like they do in planes. And best of all, Rapide’s got Elaine!

You’ve just got to meet Elaine, she’s a real swell girl. You would have to be insane to choose anyone but Rapide’s Elaine!

(Words by unknown author, an employee of the Pearson Partnership advertising agency)

Case against infringement

Pearson’s lawyers confirmed that the music “features an affectionate parody”, but they did not accept that it infringed any copyright of the Williamson work.

Denis King provided his own defence, playing both tunes to the court on an electric piano. King preferred the music to speak for itself and stated, “all that matters about a piece of music is the aural effect it produces on the listener”. He played down the value of theoretical analysis, other than “for teaching or comparison purposes”.

King sought to disagree with some of Williamson’s musicologist Rabinowitz’s theories, pointing out some errors in his transcriptions, and arguing that much of the musical devices used by Rodgers were “commonplace”.