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    Copyright – Song lyrics Infringement – Whether substantial part taken, Summary judgment – Whether to grant permanent injunction – Whether claimant interested only in money

    The claimant was the owner of the copyright in a song entitled “New York town” composed in about 1961. In about 1973, a parody of the song entitled “I am the Way (New York Town)” was composed with the permission of the claimant. The author of the parody assigned his copyright in it to the claimant. In about early 1998, the first and second defendants co-wrote a composition entitled “Jesus in a Camper Van”.
    The composition was published by the third and fourth defendants who had acquired the copyright in it. The lyrics of the three compositions are annexed to the judgment.

    “I am the Way” contained the line “Every good man gets a little hard luck sometime”. The parody contained the line “Every Son of God gets a little luck sometime” repeated three times by “Especially when he goes around saying he’s the way”. The defendants’ composition contained the lines “I suppose even the Son of God/Gets it hard sometimes/Especially when he goes round/Saying I am the way”. This was repeated and then the first two lines were repeated. H4  Permission was sought from the claimant in relation to the defendant’s lyrics, doubt being expressed as to whether, in fact, a substantial part had been taken.
    The claimant was willing only to give permission on the basis that it was the 50 per cent copyright holder of the new composition on a worldwide basis. The defendants considered this to be excessive and offered a 10 per cent copyright ownership. The defendants had in fact gone ahead and produced and distributed records of “Jesus in a Camper Van” as they had been confident of obtaining permission. In a letter before action dated April 1999, the claimant’s solicitors required the defendants to account for 100 per cent of all moneys received even though there was no allegation that the music of “Jesus in a Camper Van” infringed.
    This was later modified in August 1999 to a demand for 50 per cent of the copyright. Later in August, the claimant’s solicitors stated that the infringing material should have been deleted and expressed confidence that the court would uphold their client’s property rights. Proceedings were issued on February 3, 2000 and the claimant sought summary judgment.

    The defendants argued that the idea and the words in which it was embodied would be offensive to many people and that this feature of the composition should be taken into account when the court was considering the question of substantiality. The defendants also argued that if there had been infringement, no injunction should be granted because the claimant was only interested in money and was using the threat of an injunction to act in an oppressive manner. The claimant argued that a property owner was entitled to charge what he liked for its use and that to do so could not amount to oppression.

    Held, granting summary judgment and directing an inquiry as to damages or an account of profits, but directing that the issue of injunctive relief be determined at trial:
    (1) When considering the question of substantiality, it was necessary to see how important the part which had been copied was in relation to the whole work. The court was not required to act as an arbiter of either artistic merit or good taste; otherwise it would be in danger of imposing a form of censure by refusing the protection of copyright law to artistic works, on the grounds of their lack of artistic or moral value in its eyes.

    (2) Jesus in a Camper Van” had taken the central idea from “I am the Way (New York Town)”, namely that the Son of God attracted bad luck by going round saying “I am the way” and had embodied it in virtually identical words. This was of sufficient substance to amount to an infringement of copyright.

    (3) In the absence of special circumstances the law would protect property rights. A person was not to be forced to sell his property for its reasonable market value and a defendant was not to be permitted to buy the ability to infringe rights by the payment of damages. Macmillan Publishes Ltd v. Thomas Reed Publications Ltd [1993] F.S.R. 455 and Phonographic Performance Ltd v. Maitra [1998] 1 W.L.R. 870, [1998] F.S.R. 749 referred to.

    (4) It should be remembered that the original reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringement of property rights was the then inadequacy of damages as a remedy. Where a claimant wanted only financial compensation, the financial remedies for infringement of copyright were today adequate in most costs provided, of course, that the defendant was solvent. Shelfer v. City of London Electric Lighting Company (1895) 1 Ch. 287, Banks v. EMI Song Ltd (No. 2) [1996] E.M.L.R. 452, Jaggard v. Sawyer [1995] 2 All E.R. 189 and Hogg v. Kirby (1803) 8 Ves. 215 referred to.

    (5) In the present case, it was arguable that there had been an element of acquiescence on the part of the claimant because the original letters of complaint referred only to financial compensation; the correspondence strongly suggested that the claimant was only interested in money and the effect of granting an injunction would be to enable the claimant to demand an excessive price for permitting the defendants to continue selling the album containing “Jesus in a Camper Van”.

    (6) Although a copyright owner “could charge whatever he wished”, in a sense that he was legally entitled to do so, it was arguable that if he sought to exploit the right unreasonably so as to take advantage of the defendant’s weak position (albeit one of his own making) his conduct might be regarded as oppressive. In the present case, the claimant had not asked for an “appropriate” payment but arguably had made excessive demands far beyond what it would have been entitled to.

    Phonographic Performance Ltd v. Maitra [1998] 1 W.L.R. 870, [1998] F.S.R. 749 distinguished.

    “Fleet Street Reports” April 2000