Hawkes & Son (London) Ltd vs Paramount Film Service Ltd
1934 • Decided • England and Wales
Claimant Work: Colonel Bogey
A case was brought in 1934 by Hawkes & Son, publisher of the march Colonel Bogey, written in 1914 by Lieutenant F.J. Ricketts (using his pseudonym Kenneth J. Alford). Paramount Film Service had included a section of the march in a film of the opening of Holbrook School in Suffolk in 1933, without first having obtained a licence from the publisher.
The case is significant in defining what constitutes a substantial part of a piece of music in a consideration of infringement, and is often followed in subsequent cases. Even though it does not involve infringement by plagiarism, it is included here by virtue of its significance in determining the outcome of plagiarism cases.
Case for infringement
The claimants’ case was simply that Paramount had not obtained a synchronisation licence for use of the music in the film. One of the exclusive rights administered by the owner of a copyright is the synchronisation right – the permission needed to combine a piece of music with a piece of film. In not obtaining a synchronisation licence, Hawkes & Son considered that their copyright had been infringed.
Case against infringement
At trial the defendants contested that the amount of music used in the film was not substantial, and also that its inclusion in the newsreel fell under the ‘fair use’ exemption within the 1911 Copyright Act. This allowed for extracts of musical works to be used without a licence if the usage adhered to certain conditions, among which were that its purpose must be for criticism, reporting or review, that it should not be a substantial part of a piece of music, and that the copyright owner must be acknowledged.
The 1911 Copyright Act states that copyright is not infringed by "any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary". It is relevant to note here that by 1911 the film industry was still in its infancy, hence its omission from specific reference in the wording of the act.
It has not yet been possible to trace a copy of the film, though an audio extract of Colonel Bogey is available below.
(Alford) © Hawkes And Son (London) Ltd. Recording by The Band of H.M. Royal Marines conducted by Lieutenant-Colonel Vivian Dunn ℗ 1959, HMV
At the original trial the court found that copyright had not been infringed by use of the music in the film, and that a 20-second excerpt of a four-minute piece of music was not substantial. Hawkes & Son appealed this decision. At the Court of Appeal the ruling was reversed. Here Lord Justice Slesser considered the excerpt to be substantial in that its opening 20 seconds encapsulated the main theme of the piece, which would be recognised as “a substantial, a vital, and an essential part”.
Lord Justice Romer agreed in allowing the appeal, but “with some regret”, as he was sure the defendants intended no malice in using the music without licence, and because the decision would no doubt hamper their future intentions to use copyright music in newsreels. There was some discrepancy over the actual amount of music used, with one judge referencing “some 28 or more bars, and it takes something like 50 seconds to one minute to reproduce”, though he too agreed that this amount was substantial.
Paramount were simply guilty of a misunderstanding in assuming that their use of the excerpt would not infringe, but the case had set the ‘substantial part’ test as being both a qualitative and quantitative judgement. This case was referenced many times in subsequent trials as a precedent for what constituted a substantial part of a piece of music.
It has not yet been possible to trace a copy of the film in question.