COPYRIGHT
Music Publishing

Scottish band Belle & Sebastian have agreed to pay out a fifth of any royalties they earn from their new single to Cliff Richard’s backing band The Shadows. Belle & Sebastian’s new double A sided single “Your Cover’s Blown/ Wrapped Up In Books” was released on June 21 in the United Kingdom. The band had, pre-release, voluntarily confirmed that the melody to “Wrapped Up In Books” was similar to the Cliff and the Shadows 1966 hit “In The Country” written by Sir Cliff Richard’s ex-backing band, the Shadows. Belle & Sebastian were shocked when friends said the new single was a ‘dead ringer’ for the 1960s hit and the band, perhaps wisely, contacted Carlin Music and offered to share the royalties with an agreed 20% going to the members of the Shadows to share.
See : http://www.eveningtimes.co.uk/print/news/5026913.shtml
COMMENT :Copying someone else’s copyright work is a copyright infringement and remedies for proven infringement include injunctive relief and damages. When looking at a similar melody, copyright infringement will only come into play where there is direct copying of a ‘substantial’ part of a song (“substantial use”). In the USA, the copying would have to produce a new work which was ‘substantially similar’. But the courts have drawn this provision very tightly and it appears that almost any identifiable copying will be a copyright infringement. Here, in the UK, it appears that there was only a one minute section in “Wrapped Up In Books” which sounded like “In The Country” – but that would be enough. It could be argued that there was no actual direct or even indirect copying – Belle & Sebastian appear to have been unaware of the similarity before friends told them. But perhaps wisely Belle & Sebastian didn’t want to take any chances and came to an arrangement where they have kept 80% of the songwriting royalties. In an earlier case involving another Scottish band, The Bluebells, the contribution of fiddle player Bobby Valentino (originally only paid for his efforts) resulted, in English law, with him being credited as a joint author of the work and in the absence of an agreement to the contrary, entitled to 50% of songwriting royalties to the song “Young at Heart”.

In cases of the alleged copying of melodies, the UK courts will usually ask the defendant to prove that they haven’t copied another person’s song. In Stephenson v Chappell & Co Ltd (1935) the use of identical notes constituting the melody in two songs was prima facie evidence of infringement: If the evidence shows that there are striking similarities between two works and the plaintiff’s was earlier in time and the defendant could have got to know the plaintiff’s work then the court may find copying in the absence of a convincing explanation from the defendant (Harman Pictures vOsborne (1967) 2 All ER 324). Last year, American rockers The Flaming Lips had to hand Cat Stevens a costly settlement after he complained their song “Fight Test” sounded like his 1970s classic, “Father And Son” and Robbie Williams is paying ongoing royalties for using a verse of borrowed lyrics in his song “Jesus In a Camper Van”. In two cases where sound recordings were sampled and used, US rapper Vanilla Ice (“Ice Ice Baby”) and rock band the Verve (“Bittersweet Symphony”) both lost 100% of their royalties for using sampled recordings in their own recordings (with Vanilla Ice using both the sound recording copyright and the musical copyright owned by Queen and David Bowie).

Further Reading: See the article by Ben Challis on music sampling at –http://www.musicjournal.org/03thesongremainsthesame.html


Harman Pictures v Osborne (1967) 2 All ER 324 at 328

See Law Updates:
March 2003Judgement Against Truth Hurts in Sampling Case
July 2003US Court Dismisses Copyright Infringement Case (re Britney Spears)
December 2003Fair Use Doctrine in Ghostface Kilah Case
December 2003Beastie Boys Have Not Infringed