Williamson Music vs The Pearson Partnership Ltd
1986 • Decided • England and Wales
Claimant Work: There Is Nothin' Like A Dame
Defendant Work: You've Just Got To Meet Elaine
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”.
A comparison of the two musical extracts show the eight bars of chorus which were deemed to infringe, and one can immediately see the correspondence in note values (i.e. the note’s duration, rather than its pitch). Although the note pitches themselves rarely coincide, the overall ‘feel’ is similar. The musical style and harmonic structure is similar, and the metre of the lyric (i.e. number of syllables per line of text) and rhyming structure (A:B:A:A) are also identical.
It has not been possible to source a recording of the National Express Rapide commercial, so the recording presented here has been reconstructed from the information available in the court notes.
There Is Nothin' Like A Dame
(Rodgers/Hammerstein) © Williamson Music. Recording by Myron McCormick and the Original Broadway Cast ℗ 1949, Columbia Records.
You've Just Got To Meet Elaine
(King) © unknown (here transposed up from the original E major original). Recording ℗ 2017, Lost in Music (reconstructed from the trial notes).
The judge, Mr Justice Baker concluded that “it could be arguable that a substantial part of There Is Nothin’ Like A Dame is present in the advertisement”. The judge admitted that he found the case “a very difficult one” but granted the injunction. That the case for infringement never came to trial suggests that the parties settled out of court.
In giving his ruling, the judge referred to earlier rulings on parodies in the US courts, where “the distinction . . . turned on the relative significance or ‘substantiality’ – in terms of both quality and quantity – of the material taken from the original . . . ”. He also quoted Mr Justice Younger in Glyn v Weston Feature Film Company as saying “that no infringement of the plaintiff’s rights takes place where a defendant has bestowed such mental labour upon what he has taken and has subjected it to such revision and alteration as to produce an original result”.
The defendants’ survey results actually backfired, as the fact that nine out of 130 recognising the track as Dame was considered to add weight to the claimants’ case.
2 Oct 2017
There is a copy of the National Express video commercial including words and music on YouTube at: https://www.youtube.com/watch?v=d1bengLIsNA (0.38 secondss long) (viewed 01 October 2017)
2 Oct 2017
This is definitely an 'affectionate parody', made particularly clear by the rhyming of 'dames' and 'Elaine'. Musical references such as this are rife and a mark of great respect, it's sad that people only see profit in such a gesture!
3 Oct 2017
The problem is that there was no parody exception at the time in English copyright law - the only possible argument was that there was no copyright breach. Even now when there is a fair dealing for parody permitted act, it is possible that a commercial purpose such as an advert, as in this case, will prevent it applying when looking at the fair balance to be drawn. It is worth noting a similar situation with another Rogers & Hammerstein track "The Sound of Music" with the original melody and altered lyrics being parodied in a 30 second trailer (which also used the style of the film) promoting the (then BBC's) Great British Bake-Off TV Series in 2015 was withdrawn after complaint presumably because of the risk that its commercial intent weighed more heavily than its use as a parody. The BBC said it was only ever intended to have a limited run in any event.