Around October 2013, Kevon Hart, a Director and songwriter employed by the claimant, composed a song titled “No Worries” (“the claimant’s work”). On or around October 20, 2013, the first defendant, who was a radio personality and professional music artist, received an email containing the claimant’s work from the producer of its sound recording. Following his review of the claimant’s work, the first defendant responded to the said email, stating, “yeah I like this, need a tweak but have vibes”.
The first defendant collaborated with Akeem “Preedy” Chance, a professional songwriter, in writing a song titled “No Worries”. The second defendant completed the music for the song, the first defendant completed the recording, and the work was released around November 14, 2014 (“the defendants’ work”), on which date the defendants’ work was sent via email to a disc jockey employed by the Third defendant’s radio station, 96.7 FM, with a cover stating that the song was written by the first defendant and Akeem “Preedy” Chance and that it was produced by the second defendant. The defendants’ work was also submitted to the Copyright Organisation of Trinidad and Tobago.
The claimant claimed that, in around October 2014, Mr. Hart heard a song titled “No Worries” that was published on YouTube and was being circulated on social networking sites. The claimant stated that this song had similar lyrical content to its work. Following this, a Pre-Action Protocol letter was issued on behalf of the claimant to the Third defendant. In view of that letter, the Third defendant ceased playing the defendant’s work on air.
In April, 2015, the claimant instituted an action against the defendants for an alleged copyright infringement of its work on the basis that:
The words “wine with no worries” used in the claimant’s song were unique; and
The way in which the words “no worries” were performed by the first defendant was similar to the way in which they were performed in the claimant’s work and that the said phrase and its rendition was a substantial part of the song.
The defendants counterclaimed, contending that when a Pre-Action Protocol letter was issued and consequently, the radio stations ceased playing the first defendant’s songs, he received fewer invitations to perform as a professional artist and as a result, he suffered loss.
In making its determination on the matter, the court considered the issues of whether there was a violation of the claimant’s copyright and whether either the claimant or the first and second defendants were entitled to damages.
The court found that there was and could be no original skill, labor or originality of thought associated with the words “wine with no worries” and it could not be said that the words originated with the claimant. Moreover, the court indicated that the said words were common within local parlance, formed an integral and entrenched part of the cultural fabric of Trinidad and Tobago society and were synonymous with the revelry and gaiety of Carnival, which, after all, is the season to “wine and to abandon all worries”. It was therefore the court’s view that no originality could be attributed to the words “wine with no worries” and it was not a unique literary expression that could attract copyright protection.
In examining the manner in which the words “no worries” were sung, the court considered the expert evidence of both parties and found that there were no substantial similarities between the claimant’s work and the defendants’ work, in relation to the lyrics, melody and/or the delivery of the respective performances with respect to how the words ‘no worries’ were sung. The court also found that it could not be said that the defendants took from the claimant’s work so much of what was pleasing to the ears of the target audience or that there was an unauthorized appropriation for which the defendants should account.
Further, on application of the test in Designer Guild Ltd. v Russell Williams Textiles [2001] 1 All ER 700, the court found that the defendants’ work was not the result of copying but was independently created. The court further found that, although the first defendant had access to the claimant’s work, he did not copy it, and that the second defendant had no knowledge of the existence of the claimant’s work at the relevant time.
In respect of the counterclaim, the court found that there was insufficient evidence to establish the requisite nexus between the receipt of the claimant’s pre-action protocol letter and the first defendant’s receipt of fewer invitations to perform, to justify an award of damages.
Although the claimant was not successful, the court applauded the efforts to seek judicial determination of important issues of IP protection, noting that greater appreciation, awareness and use of IP protection would allow afforded creators and innovators to harvest the fruits of their creativity.
Cases referred to:
Creagh v Hit and Run Publishing Ltd [2002] EWHC 2512;
Laureyssens v Zdia Group Inc., 964 F. 2d 131 (2d Cir. 1992);
Baigent and another v Random House Group Ltd. (2007) EWCA Civ 247;
Repp v Webber, 132 F. 3d 882, 889 (2d Cir. 1997);
Joel McDonald vt Kanye West, et al., 15-3489cv 2nd Cir. (October 7, 2016);
Designer Guild Ltd. v Russell Williams Textiles [2001] 1 All ER 700;
Coffey v. Warner/Chappel Music Ltd. [2005] EWCH 449 (Ch);
IPC Media Ltd. v Highbury Leisure Publishing Ltd. (No. 2) [2004] EWHC 2985 (Ch) (21 December 2004);
Other authorities referred to:
Copinger And Skone James On Copyright, 15th Ed. Vol. 1;
Halsbury’s Laws of England, Copyright (Volume 23 (2016)), paragraph 503;
Concession for the Operation of a Public Telecommunications Network and/or Provision of Public Telecommunications of Broadcasting Services, regulation D33.