## Facts

- A singer-songwriter claimed authorship of an unreleased song, “Can You Tell Me” (CYTM), written around 2006 and captured in an acoustic promotional recording made in 2007.
- CYTM was made available via (i) a 2007 MySpace posting, (ii) a DVD circulated within parts of the music industry in 2007, and (iii) a Vimeo upload in May 2012.
- The defendants were songwriters associated with Rudimental’s “Waiting All Night” (WAN), commercially released in 2013.
- The infringement claim focused on the chorus of WAN, alleged to copy the lyrics and vocal melody of the chorus of CYTM.
- The alleged overlap centered on repeated use of “tell me that you” and the phrase “tell me that you need me,” set to a similar, simple melodic contour with stressed words placed at higher pitch.
- By the close of evidence, the copying case was pursued in substance only against one defendant songwriter as the originator of the challenged WAN chorus.
- The defense relied heavily on a contemporaneous 2012 “voice memo” made by that songwriter, recording experimentation with chorus ideas and an apparent path to the final lyric and melody.
- A co-authorship counterclaim regarding CYTM was adjourned for health reasons, with the counterclaimant bound by the court’s infringement findings.

## Issues

1. Whether the claimant proved that the defendant songwriter had access to CYTM before WAN was composed, supporting an inference of copying.
2. Whether the allegedly copied elements of CYTM’s chorus (lyrics and vocal melody, individually or in combination) were sufficiently original and were reproduced in WAN.
3. Whether the evidence, including the 2012 voice memo and testimony about the writing process, showed independent creation defeating an allegation of copying.

## Decision

- The court dismissed the copyright infringement claim in full and entered judgment for the defendants.
- The court found the similarities between the choruses limited, especially given the simplicity of the musical material.
- The claimant failed to prove access to CYTM on the balance of probabilities; alleged industry links and online availability did not establish that the defendant songwriter encountered the work.
- The 2012 voice memo provided strong support for independent creation of the WAN chorus, making copying less probable than spontaneous development during songwriting.

## Legal Principles

- The claimant bears the burden to prove copying, commonly by establishing (i) access and (ii) similarities sufficient to support derivation rather than coincidence.
- Where access is not proved, similarities generally must be striking to justify an inference of copying.
- Commonplace lyrical phrases and short, simple melodic ideas reduce the evidential weight of similarity, both as to originality of the alleged “work taken” and as to inference of copying.
- Credible contemporaneous evidence of the creative process (such as recordings made during composition) can strongly support independent creation and defeat an infringement claim even where some surface similarity exists.

## Conclusion

The court rejected the inference of copying because access was not shown, the shared lyrical and melodic features were limited and partly commonplace in pop music, and a contemporaneous voice memo credibly demonstrated independent creation of the challenged chorus.


Smith v. Dryden, [2021] EWHC 2277 (IPEC) (Eng.)