COFFEY-COLOURED COPYRIGHT CLAIM FAILS BEFORE A RAY OF LIGHT

The IPKat stumbled across Coffey v Warner/Chappell Music Ltd and others [2005] EWHC 449 (Ch), a Chancery Division decision that has been trawled up by LexisNexis' subscription-only All England Direct service. Coffey, a singer and songwriter, alleged that, in publishing and recording Madonna's 'Nothing Really Matters' (NRM), the three defendants (the Warner/Chappell record company and two publishers) had infringed her copyright in a song she wrote between November 1995 and March 1996. NRM, which was credited as being co-written by Madonna and Patrick Leonard, appeared on Madonna’s 'Ray of Light' album which Warner/Chappell released in 1998. Coffey did not claim copyright in the entirety of her song, but cited specific elements of it such as voice expression and pitch contour.

The defendants applied (i) to strike out the claim on the ground that the particulars of claim, as re-amended, disclosed no reasonable grounds for bringing it, or (ii) for summary judgment on the basis that Coffey had no reasonable prospect of succeeding on her claim. They argued that the copyright existed in a work in its entirety, rather than in parts of or extracts from the work, and that the work relied on by Coffey could not have constituted a musical work in which copyright could exist, in that it comprised no more than features of, or extractions from, the work.

Madonna: no infringement through "voice expression" and "pitch contour"

Mr Justice Blackburne allowed the defendants' application. He held as follows:

* What constituted the copyright work in any given case was a matter for objective determination by the court. If the subject matter of a copyright infringement claim were defined too narrowly, it might to deprive a defendant of a good defence that what he took had not involved the taking of a substantial part of the true copyright work. This approach might also create layers of different artistic copyrights.

* In this case, what was relied upon as the copyright work was not, in law, capable of being properly so regarded. It was clear that cherry-picking those features of the work, such as voice expression and pitch contour, in order to identify as the material copyright work matters where arguably NRM was the same was precisely what Coffey appeared to have done. Accordingly, the claim would be struck out.

The IPKat thinks this is the right course to take. Even where the bulk of a claimant's work is unoriginal (for example where it is an old musical work that has been re-edited, as in Sawkins v Hyperion), the comparison between works for the purpose of establishing substantiality is based on the entire work as edited by the author, not just on his own added bits. This decision seems to be based on the same approach.

Nothing really matters here and here