Francis Day & Hunter Ltd v Bron
Infringement of copyright requires a causal link between the claimant's work and the defendant's work, which may be shown by subconscious copying, but similarity alone is not enough.
Facts
The claimants owned the copyright in a song called In a Little Spanish Town, written in 1926. The defendant composed a song called Why, in 1959, which contained a similar opening melody. The composer of Why said that he had never consciously heard the earlier song, although he might have heard it as a child. The claimants argued that he must have copied it subconsciously.
Legal principle
The Court of Appeal held that there was no infringement. Willmer LJ said that, to establish infringement, there must be sufficient objective similarity between the two works, and a causal connection between them, so that the defendant's work was derived from the claimant's. Subconscious copying is possible, but it must be proved that the composer of the later work was familiar with the earlier work and that there is a causal link between them. The evidence did not establish that the composer of Why had heard the earlier song, so the claim failed.
Related cases on copyright: infringement and defences
- Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142, [2002] Ch 149
- Baigent v Random House Group Ltd [2007] EWCA Civ 247
- Deckmyn v Vandersteen Case C-201/13, EU:C:2014:2132
- Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416
- GS Media BV v Sanoma Media Netherlands BV Case C-160/15, EU:C:2016:644
- Hubbard v Vosper [1972] 2 QB 84
- Hyde Park Residence Ltd v Yelland [2001] Ch 143
- LB (Plastics) Ltd v Swish Products Ltd [1979] RPC 551
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