It should go without saying but….
EPO Enlarged Board of Appeal significantly changes formal requirements for making a valid priority claim.
The popular drum and bass band Rudimental were recently required to show that they had independently created the hit song “Waiting all night” in a copyright infringement dispute, demonstrating the importance of complete record-keeping for all creative processes.
In the proceedings before the Intellectual Property Enterprise Court, the Claimant alleged that Rudimental had copied the lyrics and melody from a song composed by them called “Can you tell me”.
For the claimant to be successful, they needed to prove copying which requires that:
Both songs use the repeated lyric “tell me that you” followed by a phrase. In “Can you tell me”, these phrases were “love me”, “need me” and “won’t leave”. In “Waiting all night”, the phrases were “need me” and “want me”. In both songs verbal emphasis is also always placed on the word following “tell me that you” which is further always sung to a long note in both songs.
However, the differences were significant in that the “tell me that you” phrases in “Can you tell me” were sung as questions whereas the same phrases were sung as demands in “Waiting all night”. In addition, the exact notes used in each song differed.
The Court decided that given lyrical and melodical simplicity is often desirable in pop music, the simplicity of lyrics and melody meant that while the lyrics and melody were similar it could have been a coincidence that both composers independently set “tell me that you need me” to the melody found in “Can you tell me”.
In determining copying, the Court considered firstly whether Rudimental had heard “Can you tell me” before composing “Waiting all night”.
The claimant’s evidence was that the song “Can you tell me” had been made available online on Myspace in 2007, as well as being added to the video website Vimeo in 2012 (see the link above). It was also distributed through a DVD in the recording industry, although there was limited evidence as to the extent of this distribution.
“Can you tell me” had also never been produced commercially so it would not have been heard on the radio or available for purchase in shops.
In the end, there was no direct evidence that people involved in the composition of “Waiting all night” had actually heard the “Can you tell me” song before composing of “Waiting all night”.
The second point considered by the Court was the creative process involved in composing “Waiting all night” to understand if it was an independent creation.
Rudimental provided a voice recording of the composition process for the lyrics and melody which detailed the various phrases and combinations of notes that were tried when working on the chorus. This provided strong support for the conclusion that Rudimental spontaneously and independently came up with Waiting all night.
So to summarise:
As such, Rudimental were cleared of all allegations of copying “Can you tell me” and the case was dismissed.
This decision has broad application to intellectual property rights in showing the importance of good and complete record-keeping.
If possible, the processes involved in the creation of new work/products both artistic and technical should be recorded to show that:
These records should be dated and could include: sound recordings; sketch books and drawings; technical log books; product prototypes; emails and text messages; and notes from relevant meetings or phone calls.
While not applicable to copyright and musical works such as in the case above, it is also worth noting that infringement of certain types of intellectual property does not require copying by a third party. As such these rights can provide broader and more complete protection.
These rights include patents protecting technical inventions, registered designs protecting the appearance of a product, and trade marks protecting a brand. All these rights must be registered to have effect in the UK and operate on “first-to-file” systems. So it is important to take a proactive approach to registration especially with patents and registered designs which must also be new in the sense that they have not been disclosed publicly before filing.
If you have any questions about the topics above please get in touch with one of our team.