[1963] Ch. 587 Page 1 [1963] Ch. 587 [1963] 2 W.L.R. 868 ...mcir.usc.edu/cases/1960-1969/Documents/UK02 - Opinion.pdf · [1960 F. 1512]; [1963] 2 W.L.R. 868 *587 Francis Day & Hunter

[1960 F. 1512]; [1963] 2 W.L.R. 868

*587 Francis Day & Hunter Ltd. and Another vBron and Another.

Court of Appeal

L.J. Willmer, Upjohn, and Diplock

1963 Feb. 20, 21, 22, 25.

Copyright—Infringement—Musicalwork—Subconscious copying—Considerable de-gree of similarity between substantial part of al-leged infringing work and original—Denial bycomposer of alleged infringing work of deliberatecopying or conscious knowledge of origin-al—Whether unconsciously copied—Whether un-conscious reproduction an infringement— Copy-right Act, 1956 (4 & 5 Eliz. 2, c. 74), ss. 2 (5), 49.

1 The plaintiffs, the owners of the copyright in amusical work "In a Little Spanish Town," com-posed by M. W., first published in 1926, and ex-tensively exploited in the U.S.A. and elsewhereever since, complained that their copyright hadbeen infringed by the publication in 1959 by the de-fendants of a musical work "Why," composed by P.de A., which they alleged reproduced a substantialpart of the plaintiffs' work. It was alleged that thefirst eight bars of the chorus of "In a Little SpanishTown" had been reproduced consciously or uncon-sciously in the first eight bars of "Why." 2 The de-fendants denied any such infringement, or that therehad been any deliberate copying, and the composerof "Why" gave evidence, which was accepted bythe judge, that he*588 had not consciously copied"In a Little Spanish Town," that he had not con-sciously heard it, but that if he had it was probablywhen he was young.

Wilberforce J. found that the first eight bars of the

chorus of "In a Little Spanish Town" constituted asubstantial part of the whole tune and that there wasa definite or considerable degree of similaritybetween those eight bars and the first eight bars of"Why," though there were differences real enoughto take into account when considering whether"Why" could be an independent creation. The judgeaccepted the defendants' case that there had been noconscious copying and held that there was insuffi-cient evidence to prove unconscious copying anddismissed the plaintiffs' case.

The plaintiffs appealed, contending that reproduc-tion of a substantial part coupled with proof of ac-cess to the original raised an irrebuttable presump-tion of unconscious copying :-

(1)that of the three relevant processes forbidden bysection 2 (5) of the Copyright Act, 1956, 3 namely,"reproduction," arrangement," and "transcription,"only "reproduction" could arise in this case since "arrangement" and "transcription" were necessarilythe result of a conscious and deliberate process(post, p. 611).(2)That "reproduction" need not beidentical reproduction since infringement of copy-right in music was not a question of note for notecomparison but depended upon whether the allegedinfringing work was substantially the same as theoriginal work (post, p. 611).(3)That proof of simil-arity between the alleged infringing work and theoriginal, coupled with proof of access to the origin-al, did not raise any irrebuttable presumption ofcopying, but at most raised a prima facie case forthe defendant to answer (post, p. 612).(4)That re-production by subconscious copying was a possibil-ity which, if it occurred, might amount to an in-fringement, but that to establish liability on thisground it must be shown that the composer of theoffending work was in fact familiar with the origin-al work, and that there was some causal connectionbetween the alleged infringing work and the origin-al work (post, p. 614).(5)That it was therefore asimple question of fact whether the degree of ob-jective similarity proved was sufficient to warrant

[1963] Ch. 587 Page 1[1963] Ch. 587 [1963] 2 W.L.R. 868 [1963] 2 All E.R. 16 (1963) 107 S.J. 193 [1963] Ch. 587 [1963] 2 W.L.R. 868[1963] 2 All E.R. 16 (1963) 107 S.J. 193(Cite as: [1963] Ch. 587)

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the inference that there was a causal connectionbetween the two works. Here it was impossible tosay that the judge had reached a wrong conclusionon this question of fact, and therefore the appealshould be dismissed (post, p. 614).Dictum of Ast-bury J. in Austin v. Columbia Gramophone Com-pany Ltd. (1923) Macg.C.C. (1917-1923) 398, 409,415 applied.Dictum of Luxmoore J. in G. Ricordi &Company (London) Ltd. v. Clayton & Waller Ltd.(1930) Macg.C.C. (1928-1935) 154, 162 con-sidered.Per Upjohn L.J. I express no opinionwhether there is*589 any difference in law betweenconscious and unconscious copying; that questiondoes not arise (post, p. 622).Per Diplock L.J. Oncethe two elements of sufficient objective similarityand causal connection are established it is no de-fence that the defendant was unaware that what hewas doing infringed the copyright in the plaintiff'swork (post, 624).Decision of Wilberforce J. af-firmed.

APPEAL from Wilberforce J.

The plaintiffs, Francis Day & Hunter Ltd., musicpublishers, of London, and Leo Feist Inc., musicpublishers Of New York, U.S.A., were the ownersof the copyright in a musical work entitled "In aLittle Spanish Town " of which the words werewritten jointly by Samuel Lewis and Joseph Young,and of which the music was composed by MabelWayne. This musical work was first published byLeo Feist Inc. in 1926. It was extensively exploitedin the United States of America and elsewhere bythe publication of sheet music, by the distributionof gramophone records and by broadcasting, and itappeared to have remained a popular hit ever since.

The defendants, Sydney Bron (trading as DebmarPublishing Company) and Debmar Publishing Co.Ltd. (incorporated on June 23, 1960, in order tocarry on the business formerly carried on bySydney Bron) were the publishers of another mu-sical work entitled "Why," which was composed in1959 by Peter de Angelis to words written by BobMarcucci.

On November 17, 1960, the first named plaintiffsissued a writ against Sydney Bron (trading as Deb-mar Publishing Company) claiming an injunction torestrain him, his servants, agents or otherwise, fromreproducing in any material form the musical workentitled "Why," or any other work which repro-duced or was an adaptation of any substantial partof the plaintiffs' work "In a Little Spanish Town,"or from authorising any of these acts without theconsent of the plaintiffs. The writ further claimedan inquiry as to damages for infringement of copy-right, an account of profits and delivery of any in-fringing material.

By their statement of claim dated November 21,1960, the plaintiffs claimed that the defendants' mu-sical work "Why" reproduced, or was an adaptationof, a substantial part of the music of the plaintiffs'work, that its reproduction in the form of sheet mu-sic, gramophone records or otherwise, constitutedan infringement of the plaintiffs' copyright, and thatall such reproductions of the defendants' work wereinfringing copies of the*590 plaintiffs' work en-titling the plaintiffs to damages for conversion inrespect of all such infringing copies distributed bythem or with their authority. The defence was ba-sically a denial of any infringement. On June 23,1960, Debmar Publishing Co. Ltd. was incorpor-ated to carry on the business formerly carried on bySydney Bron (trading as Debmar Publishing Com-pany) and on June 23, 1961, Debmar PublishingCo. Ltd. were added as defendants. By the use ofinterrogatories and admissions the issues were nar-rowed to one, namely, that of infringement.

On July 23, 1962, during the trial of the action, LeoFeist Inc. were added as additional plaintiffs (owingto the possible subdivision of the plaintiffs' title andto avoid the risk of duplicity of action).

The following reproduction of the first eight bars ofthe chorus of "In a Little Spanish Town" and"Why" has been made from the printed copies ofthe respective works put in evidence at the trial.

At the hearing, evidence was given by various mu-



sical experts and musical illustrations were givenvocally and on the piano. Recordings (inter alia) of"In a Little Spanish Town" sung by Bing Crosby,made in 1955, of "In a Little Spanish Town" by Mr.Oliver and made about 1957 or 1958, and of "Why"sung by Anthony Newley, and of an instrumentalversion of "Why" recorded by Victor Sylvester'sBand, were also played to the court.

Evidence, which the judge accepted, was given thatPeter de Angelis was a man aged 33 who was bornin 1928 or 1929, two or three years after the public-ation of " In a Little Spanish "Town," that he waseducated and brought up in the United States ofAmerica, had been composing music since the ageof 11, that is to say, since about 1940, and that athis junior and high schools he played in a danceband from the age of 13 till he was 19. The bandsplayed in the main current "hits," that is to say, thepopular tunes of the period, but also played sym-phonies. de Angelis agreed in evidence that he hadheard a lot of music and had been affected by a lotof music. He described his main musical influenceas the music of Puccini, Ravel and Debussy. Hedenied in terms that in composing "Why" he hadcopied "In a Little Spanish Town," or that he hadread the written music of it. He did not recall hav-ing played "In a Little Spanish "Town" in his dancebands, and said that he would know if he hadplayed it, that he had not heard it to his consciousknowledge,*591 "IN A LITTLE SPANISHTOWN"Tabular or graphic material set at this point is not

displayable.

”WHY”Tabular or graphic material set at this point is not

displayable.

but that if he had heard it, it must have been whenhe was young. He denied having heard the record-ing of "In a Little Spanish "Town" in 4/4 time, sungby Bing Crosby.

The plaintiffs contended (inter alia) that de Angelismight well have copied "In a Little Spanish Town"

subconsciously,*592 and asked the court to inferthat he must have heard "In a Little "SpanishTown," which was admittedly first published inAmerica in 1926 and had been extensively ex-ploited there and elsewhere by the publication ofsheet music, by the distribution of gramophone re-cords and by broadcasting, and must have heardBing Crosby's record.

The defendants argued that his knowledge of "In aLittle Spanish Town" was not such that any such in-ference could be drawn.

Wilberforce J. in his judgment, in comparing andcontrasting the two tunes, said: " 'In a Little Span-ish Town, (which I shall call ' Spanish Town, forshort) consists of verses followed by a chorus. Ithink I can dispose at once of the verses because itis not really disputed by the witnesses that they areunmemorable and unimportant. There are songs, ofcourse, whose verses are a memorable and signific-ant part of the composition, but this is not one; Dr.Bush was not challenged in his evidence on thispoint, and other witnesses agreed. So I leave out ofaccount the verses and deal with ' Spanish Town 'on the basis that, significantly, it consists of thechorus.

"The chorus is written in 32 bars; the whole of it isin 3/4 or valse time. The theme is stated in the firsteight bars; it commences in the first bar with a fig-ure of six quavers, starting on the mediant note, thefirst three notes forming the common chord of thekey. There is a drop of a sixth, then a return to thekey note, and the last three notes of the bar are des-cending. That first bar is exactly repeated in thesecond bar. In the third bar the song arrives by animperfect cadence at a held note, the second note inthe scale, and that is held for two complete bars. Inthe fifth bar the original figure is sequentially re-peated a tone lower down and again the fifth bar isexactly repeated in the sixth. Then the song arrivesby a perfect cadence to a held note, which in thiscase is the tonic note, again held for two completebars. There follow eight bars of a contrasting and(according to Dr. Bush) a subsidiary subject; this is



written mainly in crotchets and it is of quite a dif-ferent character. In bar 17 the original theme is re-sumed with a repetition of bars 1 to 4. In the nextfour bars, bars 21 to 24, there is a variant of this ofthe same shape but with an attempt at modulation.That introduces, so it is said, an element of tension.Then there are four bars which return to the slowcrotchet movement, which one could describe as avariation of the first contrasting or subsidiary sub-ject, and the song is*593 rounded off with a com-bination of the first bar followed by the fifth barand a conclusion on the key note. That, I hope, is afair description of ' Spanish Town.'

"'Why' is composed throughout in 4/4 time. Againit starts with a sequence of eight bars or, as somewitnesses have preferred to describe it, two se-quences of four bars; I do not think the dispute onthat subject is of very great importance. As with'Spanish Town,' bars 1 and 2 are identical and soare bars 3 and 4. As with 'Spanish Town,' bars 5and 6 are sequences of bars 1 and 2, for practicalpurposes one tone lower. As with ' Spanish Town,'bar 1 starts on the mediant note, but in this case thenote occupies one half of the bar. The second halfof the bar has four quavers, the first of which, as in'Spanish Town,' is one sixth below the openingnote. The last three notes are the same as the lastthree in 'Spanish Town,' but there is missing in thisfirst bar, and also the second bar, the intermediatetonic note. At bar 3, and also at bar 7, the same noteis reached as in ' Spanish Town,' but here the noteis not held. After the interval of a crotchet, there isa descent in each case to the dominant note, whichis then held for the remainder of the two bars. Afterthe first eight bars, ' Why' does not proceed as does' Spanish Town ' to a contrasting subject. 'Why' is a'thematic' song; the same theme is continued anddeveloped practically throughout. This is done intwo forms; first of all, bars 9 to 12, and then in bars13 to 15, where a modulation occurs into a differentkey. At this point there was some difference ofopinion as to the exact division or analysis whichshould be accepted, but I do not think the differenceis important; There is at any rate a short passage,

the result of which is a return to the original key.There follows a re-statement of the first eight bars,with only the minor exception that one short note isadded at one point. Then, after a final version of thetheme, the song ends with quite a different move-ment, mainly in crotchets, which I hope I may beforgiven for saying was of a somewhat lame char-acter.

"Many witnesses were called on either side to ex-plain and analyse the musical character of these twosongs. They represented different attempts to putinto words what is ultimately a matter for the ear,and there was necessarily some difference of ap-proach, according to the individual backgrounds ofthe individual witnesses; there was the composer'sapproach, the conductor's approach and the ap-proach of the lecturer.

"I do not think that any of these witnesses, whetherfor the*594 plaintiffs or for the defendants, reallydisputed the similarity of the two songs. Theplaintiffs' witnesses placed their emphasis on thedegree of similarity, saying that it was consider-able, to various degrees; the defendants' witnesses,while not in terms denying similarity, drew atten-tion to differences which they considered to be sig-nificant in different degrees. In endeavouring toreach an approach which is neither too superficialnor unduly academic or technical, I think I must tosome extent rely on my own aural judgment, in-structed as it has been by these various experts. Asit was put by Professor Nieman, 'The public has apurer approach to music than the critics.' That, ofcourse, does not mean that one must discount thehelp that the critics can give, but I think I must relyon the ear as well as on the eye, and on the spokenwords of the witnesses.

"I reach these conclusions as to the similarity orotherwise of the two songs. First, there is a differ-ence in structure between the two songs; one iscomposed on the basis of contrast and return, or asProfessor Nieman put it, on a rondo scheme, andthe other is constructed on a thematic basis.Secondly, the essential part of 'Spanish Town' lies



in its first eight bars; they imprint themselves onthe mind, to use Dr. Bush's words. They give it itscharacter and its memorability- 'They are '"SpanishTown,"' to quote Mr. Phillips, and further the firsteight bars do amount to a long phrase in terms ofcomposition, and that is relevant when one has toconsider the question of copying or coincidence.

"It would follow from this that if - and I underlinethe word 'if' - 'Why' has borrowed this essentialtheme in its first eight bars, the procedure adoptedby 'Why' of staying with it and varying the develop-ment instead of following the 'Spanish Town' pro-cedure of contrast, would not make a significantdifference with 'Spanish Town'; it might even ac-centuate the likeness. Indeed, Mr. Goodwin said inhis evidence that if someone had given him the firstfour bars of 'Why,' he would try to do with themsomething like what Mr. de Angelis has done withthem.

"Thirdly, the theme of 'Spanish Town' is made upof commonplace elements or, as some witnesseshave called them, cliches. The first six notes are acommonplace enough series; they are found in anAustrian country dance and in a song 'Let Us SingMerrily.' The device of repetition, of resting for twobars on a long note and of repetition in sequence,are the commonest tricks of composition. But manywriters of*595 great music have used clechés toproduce masterpieces; indeed, some of them havefound in the commonplace character of their basicphrase, their stimulus. Professor Nieman gave someinteresting examples from the music of Mozart, andmost writers of popular songs use, and can use,nothing else. No example was given of preciselythis combination having been used in other com-positions, though it was apparent that the musicaldictionaries and the experience of the witnesses hadbeen thoroughly combed. The best that ProfessorNieman, with his great experience, could do on thiswas to refer to a song called 'Doodle-doo-doo,'which for my part I found some distance removedfrom 'Why.' It is generally agreed by witnesses onboth sides that the combination which has in fact

been adopted by the composer of 'Spanish Town' issomething which has character and charm and thatto produce it is an act of composition.

"Fourthly, taking merely the notes of the melodies,there is a noticeable correspondence between thetwo songs. It is not note for note, nor at any pointdo more than five consecutive notes coincide, butthe correspondence exists. However, I think the de-fendants' witnesses did establish that the omissionin 'Why' of the tonic note in the third place is notinsignificant. The leap of one sixth down, and im-mediately up the whole way in 'Why,' which, ac-cording to Mr. de Angelis, was the result ofPuccini's influence, does create an impressionwhich the more gradual arpeggio effect of 'SpanishTown' does not give. This point was related to thequestion of rhythm, which I shall discuss in a mo-ment.

"Fifthly, the harmonic structure of the two 8-barsections is identical, but is completely common-place and insignificant.

"Sixthly, correspondence of melodic notes, evencomplete correspondence, is not enough to makeone tune like another. Many examples were givenwhere there is an exact coincidence of notes, butthe tunes are different and indeed incomparable.Time and rhythm are of equal, and in some viewsof greater, importance. The song 'Let Us Sing Mer-rily' was given as an example of the use of the samenotes as the first bar of 'Spanish 'Town,' with atotally different effect produced in rhythm.

"Seventhly, although 'Spanish Town' is in 3/4 timeand 'Why' is in 4/4 time, this is not of itself a decis-ive factor in establishing a difference betweenthem. It is not really disputed, as Mr. Masters firstsaid, that in the field of popular songs, many tunescan be transferred from one time to the*596 otherand retain their substantial identity. This is not trueof all tunes, but in relation to 'Spanish Town' it wasshown, by means of recordings played in 4/4 time,that adaptations to this time could be made withoutloss of recognition.



"Eighthly, as regards rhythm, there are certain dif-ferences. The swing in 'Why' from the mediant heldfor half a bar, down a sixth, to an accented notedoes create a different impression from the evenmovement from the mediant (duration a quaver)down a sixth to an unaccented note. The accent in'Spanish Town' is on the tonic third note.

"Ninthly, the difference in the third and seventhbars is not unimportant; there is character in thedrop of a fifth and a fourth respectively to a differ-ent long note, and I should say here that I accept itas clear from Mr. de Angelis's evidence that thisdifference is not really to be accounted for by theexigencies of the words; it was a deliberate choiceof composition made by him before the words werewritten.

"These are perhaps in themselves small points;some of them are what I may call 'professionals''points and one must resist the temptation, which Ithink some of the defendants' witnesses did notfully resist, to atomise what is a living phrase. Onemust not lose sight of the musical character and theaural appeal of the sentence as a whole.

"The conclusion I reach is that there is undoubtedlya degree of similarity between these two songs, theonly question being what adjective one should putbefore the word 'degree.' Mr. Lucas said that thesimilarity was 'enormous' but I think on this pointhe was a somewhat exuberant witness. Mr. Phillipssaid that the difference was not great consideringthe field of the popular song. On the whole, I thinkMr. Palmer's word 'definite' or 'considerable' is theright weight to put upon the degree of similarity; itis such that an ordinary reasonably experiencedlistener might think that perhaps one had comefrom the other. On the other hand, there are certaindifferences, not sufficient to destroy the apparentsimilarity, but real enough to take into accountwhen one is considering whether it is possible thatso similar a tune as 'Why' could have been de-veloped by independent creation rather than by im-itation. So much as regards similarity."

Wilberforce J. reached the conclusion that therewas a definite or considerable degree of similaritybetween the two tunes but that to succeed theplaintiffs must prove not only objective similaritybut that this similarity was due to an act of copying*597 whether conscious or subconscious. He accep-ted de Angelis's evidence that there had been noconscious copying on his part; he refused to drawthe inference that de Angelis must have heard"Spanish Town" or Bing Crosby's recording of it,and on the issue of unconscious copying he heldthat there was insufficient factual material fromwhich to infer that de Angelis had sufficient know-ledge or memory of " Spanish Town" to justify theconclusion that in composing "Why" he had uncon-sciously copied "Spanish Town"; and accordinglyhe dismissed the plaintiffs' case.

The plaintiffs appealed.

At the hearing of the appeal Leslie Gordon Murch-ie, professor of music of the Guildhall School ofMusic, was called as an independent expert, chosenby agreement between the parties to demonstratetwo tunes and the other musical illustrations givenin the court below. He took the following oath: "Iswear by Almighty God that I will, to the best ofmy ability, skill and knowledge, well and truly in-terpret and illustrate to the court the music and allsuch matters and questions as may be required ofme"

John Foster Q.C. and F. E. Skone James for the ap-pellants. Protection for musical copyright is af-forded by section 2 of the Copyright Act, 1956. TheAct contains no reference to "copying" as such, butthe interpretation which has been put upon the Actis that copyright involves the protection of copy-right owners from having their work copied by oth-ers. A copyright is not the same as a patent, for thepatentee is protected against any similar independ-ent invention, whereas the copyright owner is not.The inference of copying, which the courts haveheld should be read into the Act, is objective, that isto say, the "copying" may be either conscious orunconscious, and it is the latter which is important



in this case. Wilberforce J. found that there wassimilarity between the two works sufficient toprovide the first of the ingredients necessary to con-stitute an infringement, but he went on to hold thatthe composer of "Why" did not deliberately or con-sciously copy "In a Little Spanish Town" (referredto hereafter as "Spanish Town") and that on a con-sideration of all the facts, it was not possible tohold that he had unconsciously copied it. Uncon-scious copying is not a contradiction in terms. Itmeans reproduction amounting to an infringement.It means that a person has reproduced a substantialpart of a copyright work, not because*598 helooked at it, or thought of the original, but becauseit was at the back of his mind, or on his subcon-scious mind, from having heard it on the radio orelsewhere. Strictly speaking, it is a contradiction interms, but it is a useful way of saying that the com-poser looked at the copyright work and took bitsout of it, or that when he composed his own workhe had the copyright work at the back of his mindand reproduced it subconsciously. Musical peoplehave tunes in their minds which they can produceconsciously; they also have tunes in their minds,which, when composing, they may reproduce sub-consciously.

Copyright is a right of property; it is international,and should be properly protected. If it were pos-sible for a person merely to alter a tune slightly andthen avoid liability by denying that he had lookedat the original, it would open the way to blatant pla-giarism. Unconscious copying has arisen in caseswhere the courts have inferred copying despite adenial by the defendant. If, on a balance of probab-ilities, it were to appear that a defendant had beenguilty of copying when on the true facts he was in-nocent, the degree of injustice would be small. If Acomposes a tune and two years later B composesthe same tune independently, it is better that of twoinnocent people, B should suffer rather than A. Theproper inference is that the second tune was copiedfrom the first unless the defendant can prove that hewas not in a position to copy it. But the plaintiffmust first prove that the defendant could have had

access to the original. A patentee's position, on theother hand, is stronger because he does not have toprove that the infringer could have had access. Inmusical copyright the rule should be that once thetwo tunes are shown to be substantially similar, andthe possibility of access is proved, the defendantwill be held liable for infringement unless he canprove affirmatively that he did not have access. Ifthe true inference from the facts is that the com-poser must have had access to the copyright work,in the sense that he must have heard it, then an irre-buttable presumption arises that he has copied it. Inliterary copyright, if substantial similarity isproved, the presumption of copying is irrebuttableunless the defendant can prove, for example, that hewas in prison without access to books. It would bewrong to assume that the greater the similarity thegreater the likelihood of copying, for a tune maystay the same even although it is played in a differ-ent time, in a different key and with a differentrhythm. If the copying were unconscious*599 thechances are that there might be more differencesthan if the copying were done consciously.

[UPJOHN L.J. The owner of a patent has a mono-poly: that is not so with copyright. In this case thedefendant's denial of copying was believed. Inmany cases one can say "I don't believe the defend-ant because the similarity is so great," but if the de-fendant carries conviction that he did not copy it,that is sufficient.]

The more brazen the copier, the more persuasive awitness is he likely to be. If unconscious copying isnot held to be an infringement, any good witnesswill be able to copy and get away with it: the stand-ard in England will then be lower than elsewhere.Although a copyright owner does not possess amonopoly, he should be protected against infringe-ment if he can prove objective similarity and accessto the original. If one does not have that standard, itwould depend upon the purely negative one ofwhether or not the defendant be believed.

Secondly, if it is necessary in a case of unconsciouscopying to show a higher degree of similarity than



normal, that higher degree exists in this case. If thetheory of unconscious copying is rejected, theplaintiff may be without a remedy where an honestman is unaware that he is copying. The theory ofunconscious copying is still at large. It would bedisastrous to hold that there was no such thing.There is a degree of similarity necessary to consti-tute infringement, a higher degree to show that itwas unconscious, and a still higher one to show thatyou just don't believe the defendant. The issue hasnot arisen before because there have been no casesof unconscious copying. The cases were decided onthe degree of similarity as to whether or no therehad been conscious copying. This is a very seriousmatter for the publishing world. Unconscious copy-ing shows less similarity than conscious copying.

[DIPLOCK L.J. I should want expert evidence onthat.]

I would have thought judicial notice could be takenof that. It is necessary to exclude coincidence in or-der to protect the owner of the tune.

[WILLMER L.J. Your proposition involves liabilitywithout fault, but fault may be inferred if there hasbeen failure to make inquiries.]

That is on the same lines as German law, where thecomposer has to look up tunes in a musical diction-ary. But if he has access he is deemed to havecopied. It would be a defence for*600 the defendantto say "I did not consciously copy, and before pub-lishing I made extensive inquiries," because in thatcase access would have been negatived. In the caseof a musical composer, there is a presumption thathe did copy, even if he denies it, not because he islying but because it was in his subconscious mind.[Austin v. Columbia Gramophone Co. Ltd. 4 wasreferred to.]

"Spanish Town" has been extensively exploitedboth here and in the United States of America eversince it was first published in 1926. The judge didnot attach sufficient importance to this fact. Thecomposer of "Why " must have heard it. The degree

of similarity between the two tunes is very great;the change of key is immaterial, nor is the changeof time or rhythm enough to make any real differ-ence. It is necessary to prove access, but here thecomposer of "Why" must have heard "SpanishTown." The judge ought therefore to have foundthat there had been unconscious copying and thatthe composer of "Why" had been using his"memory. The judge has found that there is a de-gree of similarity which, if there had been con-scious copying, would amount to an infringement.G. Ricordi & Co. (London) Ltd. v. Clayton & Wall-er Ltd. 5 shows that in the opinion of Luxmoore J.eight bars is a sufficiently substantial part to formthe basis of an infringement. So little is known as tohow the mind works, that the fact that one has notconsciously copied does not mean that one has beenindependent.

[UPJOHN L.J. If you are right, the witness de An-gelis would have to submit to hypnosis to find outwhat influenced his mind when he was composing"Why."]

In Cholvin v. B. & F. Music Co. 6 it was held thatin an action for copyright infringement the chargeof infringing will not fail merely because the in-fringer was not caught in the act, where access maybe inferred or found circumstantially. If there isevidence of access and similarities exist, the judgemust decide whether the similarity is sufficient toprove copying. In Fred Fisher Inc. v. Dillingham 7it was held that plagiarism of any substantial com-ponent part of a musical copyright, either in melodyor accompaniment, is a proper subject for copyrightprotection. An author's right is an absolute right toprevent others from copying his original collocationof words or notes and does*601 not depend uponthe infringer's good faith. In that case the similaritylay in the accompaniment; here, therefore, wherethe similarity lies in the tune, the case is a fortiori.Learned Hand J. found in that case that there wasunconscious copying which amounted to an in-fringement. These cases set a standard and bringout the dangers which would result if some such



rule as this were not established. The sleepwalker iswalking just the same although he is unconscious ofdoing so. The same applies to the unconscious copi-er. If the main assessment is to be by ear, these twotunes are very, very alike. To the unconscious mindtime is not important, it matters not whether whatwas heard was heard recently or not. The mind canrecall it. Evidence shows that "Why" having takenthe first eight bars, repeats and emphasises thoseeight bars, and then, after a modulation to anotherkey, the tune climbs back to the original key andends with a piece that is individual. But there is ahigher degree of similarity than is normally suffi-cient for infringement. The whole eight bars havingbeen reproduced, it is outside the bounds of possib-ility that they have not been copied. The words of"Why" can readily be superimposed upon the tuneof "Spanish Town" or vice versa, and that assists inproving that there is a greater degree of similaritythan is required in the normal case.

Further, the defence could not point to any tunemore similar to "Why" than is "Spanish Town." Un-conscious piracy is just as actionable as deliberatecopying; the intention is immaterial: see Horace G.Ball's Law of Copyright and Literary Property, 1sted. (1944), p. 329, where it is stated that uncon-scious piracy is just as actionable as deliberate, in-tentional copying. Publication, to constitute in-fringement of copyright, need not be copied dir-ectly from the copyrighted article, it is sufficient ifa copy is made from memory, even without con-scious plagiarism: Edwards & Deutsch Lithograph-ing Co. v. Boorman. 8 Where evidence of access isabsent to prove copying, the similarities must be sostriking as to preclude the possibility that theplaintiff and the defendant independently arrived atthe same result: Arnstein v Porter. 9 Some peoplepossess photographic memories, and so, eliminatingcoincidence, if the witness denies deliberate copy-ing, and that is accepted by the judge, the only ex-planation is unconscious copying, which should berecognised so as to conform with internationalstandards and so as to give due protection to copy-right. By Article 4 (1) of the International Conven-

tionon Copyright signed at Brussels on June 26,1948,*602 authors who are nationals of any of thecountries of the union enjoy in other countries therights which their respective laws afford them. Ithas long been assumed that unconscious copying iscopying. This is the first case where it has been ar-gued that if the copying were unconscious it wouldbe a good defence. In Heim v. Universal PicturesCo. 10 it was held that where evidence compelledno conclusion regarding access, copying might stillbe proved by showing a striking similarity.

For the proposition that unconscious plagiarism isas actionable as deliberate plagiarism, see Sheldonv. Metro-Goldwyn Pictures Corporation. 11 It is notnecessary to charge the witness with perjury.Nobody quite knows the origin of his inventions -memory and fancy merge even in adults.

Skone James following. The argument for the ap-pellants can be put in four propositions: (1) Repro-duction within the meaning of the Copyright Act,1956, requires (a) that there should be sufficient ob-jective similarity between the two works and (b)that there should be some causal connectionbetween the plaintiff's work and that of the defend-ant. (2) It is irrelevant whether or not the defendantwas consciously aware of such causal connection.(3) Where there is a substantial degree of objectivesimilarity, this, of itself, will afford prima facieevidence to establish a causal connection. At least itis evidence from which such an inference may bedrawn. (4) The fact that the defendant denies thathe consciously copied the plaintiff's work affordssome evidence to rebut the inference of causal con-nection arising from the objective similarity, but itis not conclusive.

As to (1) (supra), the Copyright Act, 1956, containsno reference to copying, but section 2 (5) restrictsthe "reproduction" of a copyright work "in any ma-terial form," and by section 49 (1) reproduction isdefined as covering reproduction of a substantialpart of a copyright work. There is, however, noth-ing to show whether the reproduction must be con-scious, or otherwise. There is nothing to show



whether any form of copying, intentional or other-wise, is required, or to show whether or not coin-cidental copying is caught by the Act. Purefoy En-gineering Co. Ltd. v. Sykes Boxall & Co.12 throwssome light on what amounts to reproduction. An ac-curate statement of the law is that there must besome causal connections between the*603plaintiff's work and that of the defendant. It is notessential that the defendant's work should be takendirectly from that of the plaintiff. See also Hanf-staengl v. Empire Palace Ltd.13

As to (2) above, when considering whether therehas been an infringement it is not necessary toprove mens rea. The printer, for instance, may beguilty of infringement though he has no consciousintent. Conscious knowledge of infringement iswholly irrelevant.

In the present case what the court has to decide is asimple question of fact. It is whether, from the de-gree of objective similarity it is a case where thecourt will infer a causal connection. It is plain thatthere is a great degree of similarity, and the defend-ants being unable to find any other tune whichshows a greater similarity to "Why" than does"Spanish Town," the court ought to infer a causalconnection between the two tunes.

The impression to be derived from the evidence ofde Angelis, the composer of "Why," is that hethought that he derived his inspiration fromPuccini; it is submitted that in fact he derived itfrom "Spanish Town." The similarity is so greatthat the court should infer unconscious copying. Asimple denial that the work was not consciouslycopied is not enough to outweigh the similarity.

John Arnold Q.C. and J. E. Williams for the defend-ants. The case put forward by the plaintiffs is that ifa composer, having heard a piece of music belong-ing to the plaintiff, then composes a piece of musicand in doing so is inspired by the piece which hehas heard, or may have heard, to the extent that thepiece he then composes bears considerable similar-ity to the piece he has, or may have, heard, then al-

though he has no conscious knowledge that he iscopying, he is guilty of a breach of copyright. Thisimportant and interesting doctrine is, however, noteven hinted at in the books of authority upon thesubject of copyright: see Copinger on Copyright,9th ed. (1958), and Halsbury's Laws of England,3rd ed. (1954), Vol. 8.

There are three things which, on a construction ofsection 2 of the Copyright Act, 1956, may be abreach of musical copyright, and only three,namely; (i) reproduction, (ii) arrangement and (iii)transcription. Reproduction is dealt with by section2 (5) (a), arrangement and transcription by sections2 (5) (f) and 2 (6) (b) taken together. If reproduc-tion stood alone it would provide very limited pro-tection since it would afford no protection unless*604 a work were copied identically. But arrange-ment and transcription cover cases where the tunetaken is chopped about and altered. Whereas it maybe possible to reproduce a work unconsciously, it isimpossible to arrange or transcribe it uncon-sciously. If unconscious activity can result in abreach of copyright, it can, therefore, only be by re-production, and reproduction means identical repro-duction. Reproduction under section 49 may be of a"substantial part," but there is no suggestion in theAct of any such thing as "substantial reproduction."The part that is reproduced must be reproducedidentically. In the present case there is nothing ap-proaching identity between the plaintiffs' work andthat of the defendants, and there can therefore be noinfringement, whether conscious or unconscious, byway of reproduction. To take a single bar of musicand reproduce that is never a breach of copyrightbecause the part taken must be substantial. Here thequestion was whether eight bars formed a substan-tial part and the judge found that it did.

It has been suggested that there is some other levelof similarity that controls or is relevant to the de-cision of the court as to whether there has been un-conscious copying, and that if there is a sufficientlyhigh degree of similarity the court will reject thesworn testimony of a witness denying any act of



copying. The defendants deny that any such con-ception exists. Identity is the highest possible levelof similarity, yet the court could nevertheless saythat it was coincidental. As Luxmoore J. said in G.Ricordi & Co. v. Clayton & Waller, 14 there can beno infringement by an identical work if it is arrivedat independently. No level of similarity is so greatthat copying must be inferred, but no doubt a highdegree of similarity will operate upon the mind ofthe court. A fortiori if, as here, the similarityamounts to less than identity. The judge has accep-ted the sworn denial by the defendants' witness, andhas taken account of the ordinary factors of credib-ility. The plaintiffs' approach to the question is afalse one. No doubt it is true that if there be such athing as unconscious copying, which can constitutea breach of copyright, the court will, in making itsdecision, take into account the degree of similaritybetween the two tunes, but that is not the onlyfactor to be considered. There is also the extent towhich the composer of the defendants' work hasbeen familiar*605 with the plaintiffs' work. The re-production of idiosyncrasies of the plaintiffs' workwould go far beyond mere similarity.

The plaintiffs' theory rests on no judicial or text-book authority. It is devised solely for the purposesof the present case. It was also sought to rest the ar-gument on the principle that it was otherwise im-possible to do justice in the sphere of internationalcomity. But if any such presumption had been in-tended by Parliament it could easily have been putinto the statute. It is said that American cases do re-cognise such a principle and that Great Britainwould be put in a politically embarrassing positionunder the international copyright union if this prin-ciple were not applied here. See Ball on Law ofCopyright and Literary Property, 1st ed. (1944), p.329. Here the foreign law has not been proved sat-isfactorily or at all. Since the question of uncon-scious copying is one of fact it is furthermore aquestion for the trial court and not for this court:Cholvin v. B. & F. Music Co. 15 It is question offact, not one of presumption for the court.

To prove copying in this case it must be shown thatthe first bar has been taken and that it has been de-veloped similarly over the succeeding eight bars.The effect of the evidence is that the developmentover the succeeding eight bars is not inevitable butis at least an expected development. It may be opento the plaintiffs to say that the judge has not givendue weight to the correspondence between themelody and the rhythm of the first bars of the twotunes, but not that he has failed to recognise it. Thejudge in fact drew attention to certain differencesbetween the two tunes. The first bar of "SpanishTown" is divided into six quavers, in "Why" thefirst bar is divided into one minim and fourquavers. The last three notes of each of the two barsare similar but that fact is not remarkable. What isimportant is that all six notes of the first bar of"Spanish Town" are similar to the first notes of anAustrian Landler composed by Lichnowsky before1815. The first part of the first bar of "SpanishTown" differs radically from the first part of thefirst bar of "Why." The bars are totally differentfrom each other in rhythm, though melodically theyare practically the same. The third note of the firstbar of "Spanish Town" does not occur in the firstbar of "Why" and the judges drew attention to thisdifference and to its great aural significance. Thereis also a striking difference between the third barsof the two tunes.*606 The third bar of "SpanishTown" has a long-held note, the supertonic. In"Why" the supertonic is of very short duration andthere is then a drop of a fifth to a long-held note.There is a much closer correspondence betweenLichnowsky's Austrian Landler and "SpanishTown" than there is between "Spanish Town" and"Why."

Both the two tunes, it is true, make use of the sametwo devices, (1) repetition of the opening bar and(2) sequential treatment of the theme one tonelower down; but both these devices are extremelycommon ones. The fact remains, of course, thatboth devices are used here, but the onus restssquarely on the plaintiffs of proving copying. Thisonus is a serious one both because the evidence of



access is thin and because this is the first case inthis country in which it has been attempted to arguethat unconscious copying constitutes an infringe-ment of copyright. Luxmoore J. in Ricordi's case 16barely touched upon it.

Wilberforce J. did not leave any relevant aspect ofthis case out, or misinterpret the evidence; nor didhe make any finding for which there was no evid-ence, and the inferences he drew have not beenshown to be wrong. It would be impossible to say,that the composer of "Why" copied "SpanishTown" rather than Lichnowsky's Landler. It wouldnot be sufficient, to constitute copying, for thecourt to hold that de Angelis took the idea of thetreatment from "Spanish Town," but did not takethe first bar. Conversely, if the court took the viewthat the first bar had been taken but not the treat-ment, that would not be sufficient either. It must bethe whole eight bars or nothing, and the third barsof the two tunes are radically different. Nor could itbe done unconsciously by a process of adaptation.

Skone James in reply. The argument that reproduc-tion must be identical reproduction is untenable. Ifthat were a correct principle it would have to applynot only to music but to any form of copyright.

[WILLMER L.J. We need not trouble you on thatpoint.]

"Why" shows a sufficiently close similarity to"Spanish Town" to lead one to say, adopting thewords of Lord Maugham in King Features Syndic-ate (Incorporated) v. Kleeman O. & M.) Ltd.17 that"Why" has "adopted the essential features and sub-stance" of "Spanish Town." If inspiration is drawnfrom the plaintiffs' work and the work produced is a*607 colourable reproduction, that is sufficient. Thesole question here is whether the defendants' workhas been derived directly or indirectly from that ofthe plaintiff. The reproduction need not be a volun-tary act. A printer is liable though he does not knowthat he is copying. Neither intention nor knowledgeis essential, one remembers a tune and thinks that itis an old song not subject to copyright, it is non-

etheless infringement, if it is in fact a different tunein which a copyright exists. Similarly, if a tunecomes into one's head and one thinks "Ah that is anew tune," but the court holds that it is in fact acopyright tune, that is nonetheless infringement.The intention of the infringer is immaterial:Hawkes & Son (London) Ltd. v. Paramount FilmService Ltd.18

It was argued for the defence that the Americancases were only of persuasive authority if the cor-pus of law was the same. Here the only relevantpart of the law is the same since infringement ofcopyright both in America and England involves "re-production." That which is reproduced must be de-rived from the original. The court need only be sat-isfied that one work was in fact derived from theother and was not coincidental. The court is notconfined to cases of intentional copying. It was saidthat this was only the second case in this century inthis country in which, in cases of musical copy-right, unconscious copying has been mentioned. Infact there have only been four or five cases of mu-sical copyright this century so that the comment isnot very meaningful. Derogatory references werealso made as to the subconscious, with references toFreud and the like, but the subconscious is in factno more than a store in the mind upon which it ispossible to draw. Reproduction need not be identic-al; so long as a substantial part is reproduced that issufficient. Whether the copying is conscious or un-conscious the probability is that there will be no ex-act identity because, if it is consciously done, thecopier will not be so foolish, and, if it is uncon-sciously done, it is unlikely that it will be done withcomplete accuracy. So the fact that the reproductionis not accurate does not prove that it has not beenconsciously copied. De Angelis in evidence insistedthat the leaps down of a fifth in the third and sev-enth bars of "Why" were due to the influence ofPuccini's music. These leaps, with the change oftime, are the only real differences between the twotunes - the difference of key is immaterial. It is truethat the*608 defendants' degree of familiarity withthe plaintiffs' work has not been shown to be



strong, but de Angelis must have heard the earliertune at some time, since it has been extensively ex-ploited in the United States of America ever since1926. The judge considered the right points, butwas wrong on the inferences he drew and on theweight to be attached to the evidence. He ought tohave concluded from the evidence that "Why " wasin fact derived from " Spanish Town."

WILLMER L.J.

This is an appeal from a judgment of WilberforceJ., given on July 27, 1962, whereby he dismissed anaction brought by the plaintiffs for infringement oftheir copyright in a song called "In a Little SpanishTown" (to which I will refer hereafter as "SpanishTown"). This was composed in 1926, and (as hasbeen admitted by the defendants) was extensivelyexploited in the United States of America and else-where by the publication of sheet music, by the dis-tribution of gramophone records and by broadcast-ing. Unlike many popular songs, "Spanish Town"appears to have retained its popularity over theyears. Records published in this country (some ofthem quite recently) were played to us during thecourse of the hearing; and, speaking for myself, Iwas readily able to recognise the tune as a familiarone which I had heard on frequent previous occa-sions.

The defendants are the publishers of another songcalled "Why," which was composed in 1959 byPeter de Angelis. "Spanish Town" is written in 3/4time, and "Why" in 4/4 time. There are a number ofother differences between the two works whichwere the subject of a good deal of evidence by mu-sical experts on both sides. But when the two songswere played to us, it was immediately apparent, tome at any rate, that the effect on the ear was one ofnoticeable similarity. This is a matter which is notwithout importance, for, as was pointed out by Ast-bury J. in Austin v. Columbia Gramophone Co.Ltd., 19 "Infringement of copyright in music is nota question of note for note comparison," 20 but fallsto be determined "by the ear as well as by the eye."21

Wilberforce J. included in his judgment a detailedanalysis of the musical structure of the two sings. Iaccept this as correct, and it is, I think, unnecessaryfor me to repeat it except in summary form. In eachcase the essential feature of the song is contained inthe first eight bars, which constitute what has been*609 described as a musical sentence, and in whichthe main theme is stated. It is common ground thatin the case of "Spanish Town," these first eight barsof the chorus constitute a "substantial part" of thework within the meaning of section 49 of the Copy-right Act, 1956. In "Spanish Town" a subsidiaryand contrasting theme is then introduced, afterwhich there is a return to the original theme, whichis then re-stated with variations. By way of con-trast, "Why" is described as a "thematic" song;there is no subsidiary or contrasting theme, but,practically speaking, the whole song is devoted tothe development of the original theme.

Having given his analysis of the musical structureof each song, Wilberforce J. proceeded to state hisconclusions as to the points of similarity or differ-ence under nine headings, which I will attempt tosummarise. (1) The structure of the two songs isdifferent in the way that I have already described.(2) The first eight bars being the essential part of"Spanish Town," if the theme therein stated hasbeen borrowed in "Why," the fact that it is de-veloped by staying with it, rather than by way ofcontrast and return, would not make a significantdifference, but might even accentuate the likeness.(3) The theme of "Spanish Town" is built up of mu-sical commonplaces or cliches. The six notes of thefirst bar are a commonplace series, found in otherprevious musical works, and the manner in whichthis phrase is developed during the rest of the firsteight bars is by way of some of the commonesttricks of composition. The result, however, is acombination which gives character and charm to"Spanish Town." (4) On a note for note comparisonbetween the two songs there is a noticeable corres-pondence, though at no point do more than fiveconsecutive notes correspond. But the fact that in"Why" the descent of one-sixth from the first to the



second note is immediately followed by a leap backof a sixth to the original note instead of an arpeg-gio, as in "Spanish Town," constitutes a not insigni-ficant difference. (5) The harmonic structure of thefirst eight bars is the same in both cases; but this iscompletely commonplace and insignificant. (6)Correspondence of notes is not of itself enough tocreate similarity; time and rhythm are equally im-portant. (7) In the present case there is a differencein time, but this is not a decisive factor, for in thecase of "Spanish Town," as with other popularsongs, a change of time from 3/4 to 4/4 does notdestroy its substantial identity, or cause loss of re-cognition. (8) There is, however, a significant dif-ference in rhythm between the two songs; this is ex-emplified in*610 the first bar, which in the case of"Spanish Town" consists of an even sequence of sixquavers, whereas in the case of "Why" the first noteis held for half a bar, and is followed by a descentto an accented note. (9) There is a significant dif-ference between the two songs in the third and sev-enth bars. In "Spanish Town" these consist of asingle held note; in "Why" these bars each startwith the same note as in "Spanish Town," but afteran interval of a crotchet there is a drop of a fifthand a fourth respectively to a different held note.

Having stated these various points of similarity anddifference (which I wholly accept) the judge ex-pressed the view that, in relation to the aural appealof the sentence as a whole, there is an undoubteddegree of similarity between the two songs, theonly question being what adjective to put before theword "degree". He expressed his conclusion as fol-lows: "On the whole, I think Mr. Palmer's word'definite' or 'considerable' is the right weight to putupon the degree of similarity; it is such that an or-dinary reasonably experienced listener might thinkthat perhaps one had come from the other." Withthat conclusion I entirely agree.

If the matter stopped there, I do not think it couldbe doubted that there was material on which to basethe inference that the composer of "Why" deliber-ately copied from "Spanish Town." Were that the

right inference, I am satisfied that the degree ofsimilarity would be sufficient to constitute an in-fringement of the plaintiffs' copyright. But the com-poser of "Why" was called as a witness, and notonly denied copying, but denied that he had everseen the music of "Spanish Town," or even con-sciously heard it. He was a man of 33 years of age,and had lived most of his life in the United States.He stated that he had been composing music eversince he was 11, and had played various instru-ments in dance bands. In cross-examination he ad-mitted that at a younger age he might have heard"Spanish Town," because he had heard a lot of mu-sic, but he adhered to his statement that he had nev-er consciously studied it, and said that he did notrecall ever playing it. Wilberforce J. accepted hisevidence, and I do not think that we in this courtcould properly interfere with that finding even if wewere invited to do so, which we were not.

But that, the plaintiffs say, is by no means the endof the case, for de Angelis could well have copiedfrom "Spanish Town" subconsciously. The songhaving been extensively exploited in the UnitedStates, the overwhelming probability (it*611 issaid) is that he must have heard it; and the degreeof similarity between "Spanish Town" and "Why"is such that an inference of, at any rate, subcon-scious copying should be drawn. That, it is conten-ded, would be enough to constitute an infringementof the plaintiffs' copyright. Wilberforce J.,however, decided that there was not sufficient ma-terial to justify the inference that de Angelis copiedthe plaintiffs' work, even subconsciously; and heaccordingly dismissed the action. It is to this pointthat the present appeal has been mainly directed.

In approaching the suggestion of subconsciouscopying on the part of de Angelis, it is to be ob-served that the Copyright Act, 1956, nowhere usesthe word "copying." [His Lordship read section 2(5) and continued:] By subsection (6) (b) "adapta-tion" in relation to a musical work is defined asmeaning "an arrangement or transcription of thework." By section 48 (1) "reproduction" is defined



as including reproduction in the form of a record.There is no further relevant definition of the word,and it has been left to judicial decision to introducethe notion of copying.

Mr. Arnold, in presenting his argument on behalf ofthe defendants, drew attention to the fact that in re-lation to musical copyright there are, under section2 of the Act, only three forbidden processes,namely, "reproduction," "arrangement," and "tran-scription." Arrangement and transcription, he sub-mitted, can be only the result of a conscious and de-liberate process; a man cannot arrange or transcribewithout knowing that he is doing so. WilberforceJ.'s acceptance of the evidence of de Angelis, there-fore precludes the possibility of finding any in-fringement of the plaintiffs' copyright by arrange-ment or transcription. This submission must, Ithink, be accepted.

Mr. Arnold conceded that reproduction could pos-sibly be the result of a subconscious process. But hewent on to submit that reproduction within the sec-tion could mean nothing short of identity. Repro-duction, under section 49, may be of a substantialpart; but there is no suggestion in the Act of anysuch thing as a "substantial reproduction." In thepresent case it cannot be said that there is anythingapproaching identity between the plaintiffs' workand that of de. Angelis. Consequently, Mr. Arnoldsubmitted, there could be no infringement of theplaintiffs' copyright, whether conscious or uncon-scious, by way of reproduction.

I find myself quite unable to accept this submis-sion, for I can find no warrant for the suggestionthat reproduction, within the*612 meaning of thesection, occurs only when identity is achieved. Thisnot only offends against common sense, but is, Ithink, contrary to authority. In Austin v. ColumbiaGramophone Company Ltd. 22 the headnote reads:"Infringement of copyright in music is not a ques-tion of note for note comparison, but of whether thesubstance of the original copyright work is taken ornot." In the course of his judgment in that case Ast-bury J. 23 quoted from the earlier case of

D'Almaine v. Boosey, 24 where it was laid downthat 25 "it must depend on whether the air taken issubstantially the same with the original." I acceptthat as a correct statement of the principle.

On the other side, Mr. Foster, for the plaintiffs, sub-mitted in the first place that de Angelis's denial ofcopying was wholly irrelevant. For where, as wassaid to be the case here, a sufficient degree of simil-arity is shown, and it is further proved that the com-poser of the second work had access to the earlierwork in the sense that he must probably have heardit, an irrebuttable presumption arises that the formerhas been copied from the latter. No authority wascited in support of this proposition, which, if well-founded, would eliminate the necessity for any fur-ther evidence once similarity coupled with accesshad been proved. In my judgment, the propositioncontended for is quite untenable; the most that canbe said, it seems to me, is that proof of similarity,coupled with access, raises a prima facie case forthe defendant to answer.

Mr. Foster contended in the alternative that the de-gree of similarity found by Wilberforce J. in thepresent case is such as to compel an inference ofcopying which, even if subconscious, is sufficientto give the plaintiffs a cause of action for infringe-ment. I confess that I have found the notion of sub-conscious copying one of some difficulty, for atfirst sight it would seem to amount to a contradic-tion in terms, the word "copying" in its ordinary us-age connoting what is essentially a conscious pro-cess. The textbooks on copyright make no referenceto the subject, and English authority in relation to itis confined to a single dictum of Luxmoore J. in G.Ricordi & Company (London) Ltd. v. Clayton &Waller Ltd. 26 Our attention was, however, calledto a number of cases in the United States in whichmthe subject has*613 been discussed, and in some ofwhich a decision in favour of the plaintiff has beenbased on a finding of subconscious copying.

It appears to me that the question must be con-sidered in two stages, namely, (1) whether subcon-scious copying is a psychological possibility, and



(2) if so, whether in a given case it is capable ofamounting to an infringement of the plaintiffs'copyright.

As to the first of these questions, it was suggestedby Mr. Arnold that medical evidence should alwaysbe required before a finding of subconscious copy-ing could be justified. I cannot think that this is ne-cessary; for the psychological possibility of subcon-scious copying was clearly recognised by Lux-moore J. and in the various American decisions,which must be regarded as of high persuasive au-thority. What Luxmoore J. said, in relation to thedefendants before him in the Ricordi case, 27 was:"If there has been any infringement, it must havebeen subconsciously, because the persons respons-ible knew the air complained of so well that theyhave taken it because they knew it." Similarly, intwo American cases in which the plaintiff suc-ceeded on the ground of subconscious copying,namely, Fred Fisher Inc. v. Dillingham 28 and Ed-wards & Deutsch Lithographing Company v. Boor-man, 29 the decision was based on the finding of ahigh degree of familiarity with the plaintiffs' work.From this emerges the conclusion, which seems tome to be consonant with good sense, that if subcon-scious copying is to be found, there must be proof(or at least a strong inference) of de facto familiar-ity with the work alleged to be copied. In thepresent case, on the findings of Wilberforce J., thiselement is conspicuously lacking.

On the second question, namely, whether any sub-conscious copying proved could amount to an in-fringement of the plaintiffs' copyright, it seems tome that all that can be said is that at least thedictum of Luxmoore J. 30 envisages the possibility.On this point I do not think that much help is to bederived from the American decisions which havebeen cited, since the American statute under whichthey were decided is markedly different in itsterms. No evidence of American law was adduced,and in its absence it is not for us to construe theAmerican statute. It may, however, be observed (aswas pointed out by Mr. Skone James) that in order

to establish an infringement of copyright, it is notnecessary to prove anything in the nature of mensrea. The*614 printer, for instance, may be heldguilty of infringement though he has no consciousintent.

The conclusion at which I arrive on this part of thecase is that subconscious copying is a possibilitywhich, if it occurs, may amount to an infringementof copyright. But in order to establish liability onthis ground, it must be shown that the composer ofthe offending work was in fact familiar with thework alleged to have been copied. This view is, Ithink, not inconsistent with the submissions put for-ward by Mr. Skone James. In the course of an argu-ment which, for my part, I found convincing, hesubmitted that in considering whether there hasbeen reproduction, so as to constitute an infringe-ment within the Act, it is wholly irrelevant to in-quire whether any copying has been conscious orsubconscious. It is for this reason, he modestly sug-gested, that the textbooks are silent on the subjectof subconscious copying. Mr. Skone James presen-ted his argument in four propositions which, if I un-derstood him correctly, may be summarised as fol-lows: (1) In order to constitute reproduction withinthe meaning of the Act, there must be (a) a suffi-cient degree of objective similarity between the twoworks, and (b) some causal connection between theplaintiffs' and the defendants' work. (2) It is quiteirrelevant to inquire whether the defendant was orwas not consciously aware of such causal connec-tion, (3) Where there is a substantial degree of ob-jective similarity, this of itself will afford primafacie evidence to show that there is a causal con-nection between the plaintiffs' and the defendants'work; at least, it is a circumstance from which theinference may be drawn. (4) The fact that the de-fendant denies that he consciously copied affordssome evidence to rebut the inference of causal con-nection arising from the objective similarity, but isin no way conclusive.

If this is the right approach (as I think it is) it be-comes a simple question of fact to decide whether



the degree of objective similarity proved is suffi-cient, in all the circumstances of the particular case,to warrant the inference that there is a causal con-nection between the plaintiffs' and the defendants'work. This is the way in which, as it seems to me,Wilberforce J. in the present case approached thequestion which he had to decide. In his judgment,he directed himself as follows: "The final questionto be resolved is whether the plaintiffs' work hasbeen copied or reproduced, and it seems to me thatthe answer can only be reached by a judgment offact upon a number of composite elements: The de-gree of familiarity (if proved at all, or properly in-ferred) with the plaintiffs' work, the character of*615 the work, particularly its qualities of impress-ing the mind and memory, the objective similarityof the defendants' work, the inherent probabilitythat such similarity as is found could be due to co-incidence, the existence of other influences uponthe defendant composer, and not least the quality ofthe defendant composer's own evidence on the pres-ence or otherwise in his mind of the plaintiffs'work." In my judgment that was a proper direction,against which no criticism can fairly be brought.

Having so stated the question to be determined, andthe matters to be considered, Wilberforce J. statedhis conclusion as follows: "In this case, after takingaccount of the respective character and similaritiesof the two works as previously discussed, and relat-ing this to the fact that there is no direct evidencethat Mr. Peter de Angelis ever knew the work of'Spanish Town' before he composed 'Why,' I havecome to the conclusion that I have not sufficientfactual material from which to draw an inferencethat he had sufficient knowledge or memory of'Spanish Town' at the date of composition, to justifyme in finding, against his express denial, that incomposing 'Why' he copied, without knowing thathe did so, 'Spanish Town' or a part of 'SpanishTown.' Putting it in another way, it does not seemto me that the degree of similarity shown, coupledwith the fact, which I think is as far as it is possibleto go by inference, that at some time and in somecircumstances Mr. de Angelis must have heard '

Spanish Town,' is enough to make good theplaintiffs' case."

The question, being one of fact, is eminently onefor the determination of the trial judge, as I think isrecognised in the American cases which were citedto us. It is to be remembered that Wilberforce J. notonly had the advantage, denied to us, of himselfseeing and hearing the witnesses at first hand; healso had the advantage, which strikes me as beingof great importance, of hearing how the musical ex-perts who were called as witnesses illustrated thetechnical evidence which they gave by demonstra-tions, both vocally and on the piano. Bearing this inmind, and having regard to the judge's acceptanceof the evidence given by de Angelis, it is, in myjudgment, impossible for us in this court to say thathe reached a wrong conclusion on what was emin-ently a question of fact for him.

I should perhaps mention one further considerationwhich appears to me to be of possible significance,and which was not dealt with specifically by Wil-berforce J. I have already referred to the fact thatthe six quavers which form the opening bar of*616"Spanish Town" are, as the judge observed, a com-monplace series to be found in other previous mu-sical compositions. Our attention was drawn, for in-stance, to an Austrian dance tune composed in theearly nineteenth century by Von Lichnowsky, theopening bar of which is identical with that of "Span-ish Town." The same sequence of notes is also to befound in a song entitled "Let Us Sing Merrily," al-though in this case there is a difference of tempo. Inthese circumstances, the fact that "Why" beginswith an opening bar containing a similar, thoughnot identical, phrase is of no special significance.By itself it would not be sufficient to warrant theinference that, if the phrase was copied, it wascopied from the plaintiffs' work rather than someother composition. What is significant is the factthat both in "Spanish Town" and "Why" the open-ing phrase enunciated in the first bar is developedover the remainder of the first eight bars by the useof the same devices or tricks of composition,



namely, repetition followed by a pause, followedagain by further repetition with a slight variation. Itis this circumstance which produces the degree ofsimilarity between the two compositions. If it couldbe said that this method of development was so dis-tinctive and idiosyncratic as to preclude the possib-ility that its adoption by the two composers was theresult of coincidence, this would be a very strongargument in the plaintiffs' favour. But, as pointedout by Wilberforce J., the devices used by the twocomposers for developing the phrase stated in thefirst bar are among the commonest tricks of com-position and, I would add, exactly the sort to be ex-pected from the composer of a popular song. I donot think, therefore, that in the circumstances ofthis case, the fact that de Angelis developed theopening phrase stated in the first bar by way of thesame devices as were employed by the composer of'Spanish Town " can be taken as in any sense proofof copying. There is at least an equal probabilitythat his choice of these devices was the result of co-incidence.

In my judgment, no sufficient reason has beenshown for interfering with Wilberforce J.'s de-cision, and I would, accordingly, dismiss the ap-peal.

UPJOHN L.J.

I agree with the judgment which has just been de-livered.

When Mr. Foster opened this appeal, he invited usin the name of international comity to say that aright of property (that is, copyright) which is thesubject of international convention*617 must beprotected in a most special and unique way. Wewere invited to say that if similarity of the allegedinfringing work to the original work was estab-lished as a fact, and if it was further established thatthe alleged infringer had had some access to theoriginal work, then although a denial of consciousplagiarism was accepted, we were bound, as an ir-rebuttable presumption of law, to say that the al-leged infringer must have unconsciously copied the

original work. The doctrine was said to be neces-sary to protect the author of the original work, forotherwise (so it was argued) any infringer could es-cape the consequences of plagiarism by denyingthat he had done so. Alternatively, it was said thatif some undefined higher degree of similaritybetween the two works could be proved -something higher than is necessary to prove simil-arity in fact - then that would be sufficient to estab-lish a similarity from which we were bound to inferunconscious copying.

Apart from the appeal to international comity, noauthority and no textbook has been cited in supportof this remarkable doctrine. Copyright is statutory,and depends upon section 2 of the Copyright Act,1956. No hint of this doctrine appears there.

As to international comity, while it is true that inthe United States of America a number of authorit-ies (to some of which I shall have occasion to referlater) accept the doctrine that subconscious or un-conscious copying may be inferred in a proper caseand operate as a breach of copyright, not one ofthose authorities gives any support to this allegedand startling doctrine. The authorities in question ineach case treated the question of unconscious copy-ing as purely a question or inference of fact whichmight be drawn in the circumstances of a particularcase, and not as a presumption of law. We were notreferred to the laws of any other convention coun-try, and the relevant paragraph (No. 4) of the Brus-sels Convention itself lends no support to the doc-trine. I therefore reject this submission.

The truth is that the plaintiff in a copyright actionmust show that a substantial part of the originalwork has been reproduced; see section 2 (5) andsection 49 of the Copyright Act, 1956; and, al-though not expressed in the Act, it is commonground that such a reproduction, in the words ofMr. Skone James, must be causally connected withthe work of the original author. If it is an independ-ent work, then, though identical in every way, thereis no infringement. If a true infringer wrongly per-suades the court that it is his own unaided work, the



plaintiff*618 fails, as do other plaintiffs whenfraudulent defendants unhappily succeed (as, nodoubt, they sometimes do) in persuading the courtthat they have not been fraudulent. The question,therefore, in this case is whether there has been abreach of section 2 (5); that subsection has beenread by my Lord, and I will not read it again.

This is really a question of fact and nothing else,which depends on the circumstances of each case;but it is a question of fact which must be taken intwo stages. The first stage is objective, and thesecond stage subjective. The first question iswhether in fact the alleged infringing work - whichfor the sake of brevity I will inaccurately call thedefendant's work, for though the composer was awitness, he was not a defendant - is similar to thework of the original author - which again for thesake of brevity I will, with equal inaccuracy, callthe plaintiff's work. Is it then proper to draw the in-ference that the defendant's work may have beencopied from the plaintiffs' work? This is purely anobjective question of fact, and depends in large de-gree upon the aural perception of the judge, but alsoupon the expert evidence tendered to him; but it isessentially a jury question. A defendant might intheory go into the witness-box and say that he haddeliberately made use of the plaintiff's work, butthat it is not an infringement, either because he didnot make use of a substantial part of the plaintiff'swork, or that, though the plaintiff's work has beenutilised, he has been able so to alter it that it cannotproperly be described as a reproduction. The onusis on the plaintiff to prove the contrary as a matterof purely objective fact, and if he cannot do so thenthe morally dishonest defendant will escape theconsequence of the allegation of infringement. Nosuch question arises in this case. At this stage simil-arity has been found by Wilberforce J., and that isnot challenged before us. For myself, I think thatperhaps I would have used rather stronger adject-ives than "definite" or "considerable" similarity,which were the words used by the judge; the adject-ive "close" would be more appropriate, but nothing,I think, turns upon that matter.

The next stage is the subjective stage and is equallya question of fact, though, of course, the degree ofsimilarity is most important in reaching this sub-jective conclusion. The question at this stage, putbluntly, is: has the defendant copied the plaintiff'swork, or is it an independent work of his own? Mr.Skone James, in an attractive argument, agrees thatthe plaintiff, in order to succeed, must prove a caus-al connection*619 between his work and the de-fendant's work; but he submits that, providing thatupon a proper inference from the known facts, it isright to assume that the alleged infringing work wasderived from the plaintiff's work, it matters notwhether it was done consciously or unconsciously.There is, he submits, no difference in principlebetween a conscious act of piracy and an uncon-scious act of piracy; all that must be established is acausal connection.

While conscious acts of piracy may be establishedin the witness-box, unconscious acts of piracy mustclearly be a matter of inference from surroundingcircumstances. The alleged infringing work may bean identical reproduction of the original work withall its idiosyncrasies, and all the same mistakes.Theoretically and mathematically, that may be acomplete coincidence, and both works may be theproduct of entirely independent brains; but thejudge has to judge of these matters on the balanceof probabilities; and such an identical reproductionmay lead him to reject the evidence of the defend-ant, who otherwise appears to be an honest witness.Much less than complete identity may properly leadthe judge, on the balance of probabilities, to rejectthe evidence of an apparently honest witness on thisquestion. This is a question of pure fact in everycase. It does not arise in this case for Wilberforce J.accepted the author's evidence that he did not con-sciously derive the composition of "Why" from "Ina Little Spanish Town," and that has not been chal-lenged before us.

At this stage, therefore, the question is whether, onthe facts of the case, it is proper to infer that de An-gelis has derived "Why" unconsciously from the



plaintiff's work, which he had heard at some earliertime. This again is purely a question of the properinference of fact to be drawn from all the relevantand admissible known facts. There may be caseswhich, if the circumstances do not justify the con-clusion that the defendant, in denying consciousplagiarism, is not telling the truth, yet justify theconclusion that he must have heard the plaintiff'stune, and subconsciously reproduced it.

I do not pause to recapitulate the facts of this casein any detail for they have been set out in much me-ticulous detail in Wilberforce J.'s judgment, andalso by Willmer L.J., that I do not repeat them. Idraw the conclusion that although, as I have alreadystated, the resemblance is a close one, that resemb-lance, in the circumstances of this case, is littleevidence of conscious or unconscious copying.*620

Wilberforce J. said: "Thirdly, the theme of 'SpanishTown' is made up of common-place elements, or, assome witnesses have called them, cliches. The firstsix notes are a commonplace enough series; theyare found in an Austrian country dance and in asong, 'Let Us Sing Merrily.' The device of repeti-tion, of resting for two bars on a long note and ofrepetition in sequence, are the commonest tricks ofcomposition. But many writers of great music haveused clichès to produce masterpieces; indeed, someof them have found in the commonplace characterof their basic phrase their stimulus. Professor Nie-man gave some interesting examples from the mu-sic of Mozart, and most writers of popular songsuse, and can use, nothing else. No example wasgiven of precisely this combination having beenused in other compositions, though it was apparentthat the musical dictionaries and the experience ofthe witnesses had been thoroughly combed."

Having heard the arguments of counsel, accompan-ied by very helpful demonstrations on the piano, Ireach the conclusion of fact that, apart altogetherfrom de Angelis's denial of conscious plagiarism,which was accepted, it is not a mere legal or math-ematical possibility, but a real live practical possib-ility that the defendant's composition of "Why" is

an independent composition. This practical possib-ility again does not conclude the matter, for the de-fendant's composition may nevertheless be the res-ult of unconscious memory. But first it is necessaryto establish the probability that the defendant hasheard the plaintiff's composition.

Wilberforce J. had to deal with a difficult situationas to whether de Angelis had heard, or even played,as a youth in a dance band, the plaintiff's composi-tion. I think it is possible that, although in perfectgood faith he stated the contrary, de Angelis didhear the music, and possibly played it in his earlyyouth. Each case must depend upon its own facts,and it is not possible to lay down any criteria. But itdoes seem to me that where, for the reasons I havegiven, there is evidence from the music itself thatthere is a real practical possibility of independentcomposition by the defendant, it requires quitestrong evidence to support the view that there mayhave been unconscious copying. To my mind, thepossibility that the defendant had heard it, or evenplayed it in his early youth, is a quite insufficientground upon which it would be proper to draw theinference of unconscious copying. It may be that inthe future*621 medical evidence will be availableto guide us upon this point, but in the absence ofacceptable and probative medical evidence I think itrequires quite strong evidence, in a case such as this- where, as I have already pointed out, independentcomposition is a real practical possibility - to estab-lish, as a matter of probability, that de Angelis'ssubconscious ego guided his hand.

The cases in the United States to which we havebeen referred offer some instructive comparison ontheir facts, although I do not lose sight of the fact,of course, that cases are only authorities for legalpropositions; but, nevertheless, I think the casescited are helpful. In the first case, that of Fred Fish-er Inc. v. Dillingham, 31 that great judge, JudgeLearned Hand, in giving the famous composer,Jerome Kern, the benefit of the doubt, said 32 : "Onthe whole, my belief is that, in composing the ac-companiment to the refrain of 'Kalua,' Mr. Kern



must have followed, probably unconsciously, whathe had certainly often heard only a short time be-fore." That is in marked contrast to the facts of thiscase.

Then, in a rather different case, Edwards andDeutsch Lithographing Co. v. Boorman, 33 theplaintiffs prepared, printed, published and distrib-uted certain discount tables, the copyright work.The defendants published very similar tables. Butthere it was established that the defendants had soldand handled the plaintiffs' publications for years,and on that the inference was drawn of unconsciouscopying. Again the facts of that case are very dif-ferent from the one before us.

Wilberforce J. put the relevant points to himselfquite accurately, and my Lord has read that part ofhis judgment; and his summary, which I will ven-ture to repeat, was this: "In this case, after takingaccount of the respective character and similaritiesof the two works as previously discussed, and relat-ing this to the fact that there is no direct evidencethat Mr. Peter de Angelis even knew the work'Spanish Town' before he composed 'Why,' I havecome to the conclusion that I have not sufficientfactual material from which to draw an inferencethat he had sufficient knowledge or memory of'Spanish Town' at the date of composition, to justifyme in finding, against his express denial, that incomposing 'Why' he copied, without knowing thathe did so, 'Spanish Town,' or*622 a part of 'SpanishTown.'" I entirely agree with that conclusion of factreached by Wilberforce J.

That makes it unnecessary to decide the really in-teresting question in this case whether Mr. SkoneJames is right when he says there is no difference inlaw between conscious and unconscious copying. Itseems to me that that is an interesting questionupon which I express no opinion, for, as I havesaid, it does not arise. Mr. Skone James, in supportof his argument, has pointed out that an infringermay be entirely ignorant of knowledge of plagiar-ism; normally the printer and publisher will also beguilty of infringement though they have no reason

even to suspect that any plagiarism can be sugges-ted.

This, however, does not meet my difficulty. You donot necessarily have to show knowledge or suspi-cion of plagiarism against every defendant, but theplaintiff always has to prove that the alleged in-fringement is not the independent work of the al-leged infringing author or composer, but is causallyconnected with the plaintiff's work.

The real question is this: can it be said to be an"act" of reproduction, for the purposes of section 2(5) of the Copyright Act, 1956, if the alleged in-fringing work is not the conscious act of the in-fringer? It has been argued that Luxmoore J. in Ri-cordi's case 34 expressed the view that subcon-scious copying could be an infringement of copy-right; but I do not think that he intended to expressany view on the law at all. For my part, I think thatthis question, therefore, remains entirely open.

I agree that this appeal must be dismissed.

DIPLOCK L.J.

This appeal seems to me to turn entirely upon aquestion of fact: was the judge entitled, notwith-standing the similarities between the melodies ofthe plaintiffs' song "In a Little Spanish Town" andthe defendants' song "Why," to refuse to infer thatthe composer of the latter work copied it from theformer work?

It is conceded on the one hand (as is obvious to theear) that the two works show considerable similarit-ies, and on the other hand that the composer of"Why" did not intentionally copy it from "In aLittle Spanish Town'"; but it was found by Wilber-force J. that the composer of "Why" must at sometime and in some circumstances have heard "In aLittle Spanish Town"; and it is contended by theplaintiffs that the only*623 proper inference of factis that he must have stored it in his memory and re-produced it without being aware that he was per-forming an exercise of recollection and not an act



of independent creation.

To this assumed mental feat there has been appliedthe conveniently ambiguous term "subconsciouscopying"; and we have heard much argument as towhether, if it is established, it constitutes an in-fringement of the copyright in the work which hasbeen unconsciously copied. For my part, I thinkthat the law is perfectly clear, and that such diffi-culties as there are in this appeal are solely due tothe absence of any factual information about themental process involved in "subconscious copying."We know not whether it is rare or common, generalor idiosyncratic, nor indeed whether it is possible toremember, not a mere isolated phrase, but a "sub-stantial" part of the remembered work without re-membering that one is remembering.

First, as to the law; and for this purpose I will as-sume that it is established that the composer of"Why" did in fact use his recollection of "a substan-tial part of" the melody of "In a Little SpanishTown " as the model for his own composition, al-though he was unaware that he was doing so, andgenuinely thought that "Why" was his own inde-pendent creation. The word "to copy" is not used atall in the Copyright Act, 1956, nor was it in theCopyright Act, 1911. Nevertheless, it is well estab-lished that to constitute infringement of copyrightin any literary, dramatic or musical work, theremust be present two elements: first, there must besufficient objective similarity between the in-fringing work and the copyright work, or a substan-tial part thereof, for the former to be properly de-scribed, not necessarily as identical with, but as areproduction or adaptation of the latter; secondly,the copyright work must be the source from whichthe infringing work is derived. The necessity for thesecond element was expressly laid down by theCourt of Appeal in Purefoy Engineering Co, Ltd. v.Sykes Boxall & Co. Ltd., 35 and is, indeed, implicitin all thee compilation cases, including the recentcase in this court of William Hill (Football) Ltd. v.Ladbrokes (Football) Ltd., 36 where tables of bet-ting odds were unanimously held not to infringe the

copyright in substantially identical tables becausethe authors of the later tables, although very famili-ar with the earlier tables, had, in fact, worked outthe odds for themselves. But while the copyrightwork must be*624 the source from which the in-fringing work is derived, it need not be the directsource: see Hanfstaengl v. Empire Palace Ltd.37Mr. Skone James, I think put it with his usual ac-curacy when he said there must be a causal connec-tion between the copyright work and the infringingwork. To borrow an expression once fashionable inthe law of negligence, the copyright work must beshown to be a causa sine qua non of the infringingwork.

The necessity for a causal connection between thecopyright work and the infringing work, althoughwell established under the Copyright Act, 1911,either as being implicit in the legal concept of"copyright," or in the word "reproduce," is, I think,more easily deduced from the wording of the cur-rent Copyright Act of 1956. Section 1 (1) defines"copyright" in relation to a work as the exclusiveright to do and to authorise other persons to do cer-tain acts "in relation to that work"; and subsection(2) defines "infringement" as the doing of any ofthose acts by a person who is not the owner of thecopyright or his licensee. The acts, which aredefined in section 2, and include "reproducing thework in any material form," if they are to constituteinfringement must thus be done "in relation to thework," an expression which connotes a causal con-nection between the copyright work and the act re-lied upon as an infringement. If the existence of thecopyright work has no causal connection with theproduction of the alleged infringing work, eventhough the latter be identical with the former, thereis no infringement of copyright.

It is, however, in my view, equally clear law thatneither intention to infringe, nor knowledge that heis infringing on the part of the defendant, is a ne-cessary ingredient in the cause of action for in-fringement of copyright. Once the two elements ofsufficient objective similarity and causal connec-



tion are established, it is no defence that the de-fendant was unaware (and could not have beenaware) that what he was doing infringed the copy-right in the plaintiff's work. This is expressly recog-nised by sections 17 and 18 of the Copyright Act,1956, which restrict the remedies available againstan innocent infringer, but recognises his liability.Thus under section 18, which gives to the copyrightowner remedies in conversion and detinue in re-spect of infringing copies of his work, a defendantwho "believed and had reasonable grounds for be-lieving that they were not*625 infringing copies "isrelieved of any liability in damages, but not of hisliability to deliver up any infringing copies in hispossession.

"Unconscious copying" in the sense in which it hasbeen used in the argument postulates, first, such ob-jective similarity between the copyright work andthe alleged infringing work that the latter may prop-erly be said to reproduce the former; secondly, thatthere is a causal connection between the copyrightwork and the alleged infringing work; thirdly, thatthe composer of the alleged infringing work be-lieved (and may indeed have had reasonablegrounds for believing) that there was no such causalconnection. The first two, if established, in myview constitute breach of copyright; the third is ir-relevant on liability although it may be relevant onremedy.

The real difficulty in this case is not one of law, butof fact. It involves an inquiry into the working ofthe human mind. It may well be that this is a matterupon which expert evidence is admissible; but casesin English courts are normally conducted upon thetacit assumption that where no question of diseaseof the mind is involved, the ordinary man, whethersitting in the jury-box or on the bench: is capable ofdetermining (where it is relevant) what went on inthe defendant's mind.

The present case was so conducted before Wilber-force J. No expert evidence was called as to howthe human memory or musical creative facultieswork; no investigation was made into the mental

idiosyncrasies of the composer of "Why" or hismethods of composition. Wilberforce J. was left todraw the inference of "subconscious copying" fromthe evidence (1) of the similarities between themelodies of "In a Little Spanish Town" and "Why"as explained by the conflicting evidence of expertmusicians; (2) of the likelihood of the composer of"Why" having at some time heard "In a Little Span-ish Town"; and (3) of his denial that he had con-sciously copied "In a Little Spanish Town."

On this state of the evidence, there were three pos-sible explanations of the similarities: consciouscopying, unconscious copying, coincidence. Thefirst Wilberforce J. rejected. He accepted the denialof the composer of "Why." This is a finding ofprimary fact, and it depends ultimately on credibil-ity. The appellants do not seek to disturb it. This re-duces the possible explanations to two: unconsciouscopying, or coincidence. Wilberforce J. did not re-ject the possibility that "unconscious copying" ofmusical works can occur. He proceeded to consider,in the light of the conflicting expert evidence,which was*626 the more probable explanation ofthe similarities, unconscious copying, or coincid-ence. The relevant similarities were to be found inthe first eight bars of the melody of "In a LittleSpanish Town" which, it is common ground, doconstitute a substantial part of that musical work.They are described clearly (and it is conceded ac-curately) in Wilberforce J.'s judgment.

The rival contentions, supported by expert evid-ence, may be summarised thus: The plaintiffs, con-ceding that the first bar by itself was a musicalcliche in which there was no copyright, contendedthat the similarities in the use made of the cliche ineight successive bars in each of the two works weretoo great to be explained by coincidence. The de-fendants contended that, once a composer of popu-lar songs had decided to use, as a basis of the themeof a popular song, the musical cliche contained inthe first bar, the use which was in fact made of it inboth "Why" and "In a Little Spanish Town" in thesucceeding bars was a device by no means uncom-



mon in musical composition, and the similaritieswere readily explicable by coincidence. Wilber-force J. was not satisfied that the similarities weredue to unconscious copying. This, no doubt, was aninference of fact, but one which depends, in part atleast, upon the degree of conviction which the evid-ence of the respective experts carried, and thus onewith which an appellate court should be slow to in-terfere. No attempt has been made to demonstratethat he has overlooked or misunderstood any of theevidence.

How, then, is the case for the appellants put? Theprocedure of the English courts, says Mr. Foster, isill-adapted to deal with such esoteric problems as"subconscious copying." It places too heavy a bur-den upon those who seek to establish that it has oc-curred. Copyright is an international proprietaryright, and English law should keep in step with for-eign law. They order these things better in moresophisticated (though unspecified) jurisdictions.But the only foreign law to which we have actuallybeen referred is to be found in the United Statescases which my brethren have discussed; and there,it seems, the matter is dealt with in the same un-sophisticated way as that in which Wilberforce J.dealt with this case, without making it impossiblefor the courts to find (where the evidence, so war-rants) that unconscious copying has taken place.

Faced with the difficulty that "unconscious copy-ing" is by definition not susceptible of direct proofin the present state of psychological techniques, itmust always be a matter of inference from otherfacts, Mr. Foster's first bold submission was, that if*627 the plaintiff proves (1) the presence of the ne-cessary element of objective similarity between thecopyright work and the alleged infringing work;and (2) the mere possibility of access to the copy-right work by the author of the alleged infringingwork, there is an irrebuttable presumption (that is, apresumption of law) that the author of the allegedinfringing work unconsciously copied the copyrightwork; or, put more briefly, what cannot be provedmust be presumed. With all respect, this is bad lo-

gic as well as bad law. For, unless "the law is anass" - which I must ex officio irrebuttably presumeit is not - the essential, though unexpressed,premise of this proposition is that the similaritiescannot be due to coincidence; proof of possibilityof access is thus unnecessary; access as well as un-conscious copying can be irrebuttably presumed.But this is merely a roundabout way of saying thatproof of a causal connection between the copyrightwork and the alleged infringing work is not a neces-sary element in infringement of copyright; and thatis not the law.

Mr. Foster's alternative submission (although I un-derstood it to be presented as one of law) was, Ithink, upon analysis merely one as to the proper in-ferences of fact to be drawn from varying degreesof similarity between the copyright work and the al-leged infringing work. The degree of objective sim-ilarity is, of course, not merely important, indeedessential, in proving the first element in infringe-ment, namely, that the defendant's work can prop-erly be described as a reproduction or adaptation ofthe copyright work; it is also very cogent materialfrom which to draw the inference that the defendanthas in fact copied, whether consciously or uncon-sciously, the copyright work. But it is not the onlymaterial. Even complete identity of the two worksmay not be conclusive evidence of copying, for itmay be proved that it was impossible for the authorof the alleged infringing work to have had access tothe copyright work. And, once you have eliminatedthe impossible (namely, copying), that which re-mains (namely, coincidence) however improbable,is the truth; I quote inaccurately, but not uncon-sciously, from Sherlock Holmes.

No useful purpose can thus be served by seeking toclassify degrees of similarity into categories whichmust be taken to be sufficient to prove unconsciouscopying where access to the copyright work by theauthor of the alleged infringing work is proved (1)as a certainty; (2) as a probability; (3) as a possibil-ity, and (4) as an impossibility. That is not howquestions of fact are decided in courts of law, or



anywhere else.*628

The answer, as Wilberforce J. said at the conclusionof an impeccable summary of the evidence, "canonly be reached by a judgment of fact upon a num-ber of composite elements." Those elements onwhich the judge directed himself have already beenread by my Lord, and I need not repeat them.

I agree that it is impossible for this court, which hasnot heard the evidence or seen the witnesses, to saythat Wilberforce J. came to a wrong conclusion offact.Appeal dismissed with costs. Leave to appealto House of Lords refused. ([Reported by T.C.C.BARKWORTH, Esq., Barrister-at-Law.] )

1. Copyright Act, 1956, s. 2: "(1) Copyright shallsubsist, subject to the provisions of this Act, inevery original literary, dramatic or musical workwhich is unpublished and of which the author was a'qualified person' ... (5) The acts restricted by thecopyright in a literary, dramatic or musical workare - (a) reproducing the work in any material form;(b) publishing the work; (c) performing the work inpublic; (d) broadcasting the work; (e) causing thework to be transmitted to subscribers to a diffusionservice; (f) making any adaptation of the work; (g)doing, in relation to an adaptation of the work, anyof the acts specified in relation to the work in para-graphs (a) to (e) of this subsection. (6) In this Act'adaptation' ... (b) in relation to a musical work,means an arrangement or transcription of the work,so however that the mention of any matter in thisdefinition shall not affect the generality of para-graph (a) of the last preceding subsection." S. 49."(1) Except is so far as the context otherwise re-quires, any reference in this Act to the doing of anact in relation to a work or other subject-mattershall be taken to include a reference to the doing ofthat act in relation to a substantial part thereof, andany reference to a reproduction, adaptation or copyof a work, or a record embodying a sound record-ing, shall be taken to include a reference to a repro-duction, adaptation or copy of a substantial part ofthe work, or a record embodying a substantial part

of the sound recording, as the case may be:"

2. See post, p. 591.

3. See ante, p. 687.

4. (1923) Macg.C.C. (1917-1923) 398.

5. (1930) Macg.C.C. (1928-1935) 154.

6. (1958) 253 Fed. (2nd Series) 102.

7. (1924) 298 Fed. 145

8. (1926) 15 Fed. (2nd Series) 35.

9. (1946) 154 Fed. (2nd Series) 464.

10. (1946) 154 Fed. (2nd Series) 480.

11. (1936) 81 Fed. (2nd Series) 49.

12. (1955) 72 R.P.C. 89, C.A.

13. [1894] 2 Ch. 1; 63 L.J.Ch. 410; 10 T.L.R. 299,C.A.

14. (1930) Macg.C.C. (1928-1935) 154.

15. (1958) 253 Fed. (2rd Series) 102.

16. (1930) Macg.C.C. (1928-1935) 154.

17. [1941] A.C. 417; 57 T.L.R. 586; [1941] 2 AllE.R. 403; 58 R.P.C. 207, H.L.

18. [1934] Ch. 593; 50 T.L.R. 363, C.A.

19. (1923) Macg.C.C. (1917-1928) 398.

20. Ibid. 415.

21. Ibid. 409.

22. (1923) Macg.C.C. (1917-1923) 398.

23. Ibid. 409, 410.

24. (1835) 1 Y. & C. 288.

25. Ibid. 302

