The High Court decided on Monday that the pop singer Robbie Williams, along with his co-writer Guy Chambers and their publishers, infringed the copyright in a song written by the late Woody Guthrie and a parody of that song by Loudon Wainwright III.
Deputy Judge Nicholas Strauss QC held that part of “Jesus In A Camper Van” from Williams’ 1988 album “I’ve Been Expecting You” was copied from Guthrie’s song “I Am The Way” and from Wainwright’s parody “I Am The Way (New York Town)”.
A claim for summary judgment was brought by Ludlow Music which owns the copyright in Guthrie’s song and Wainwright’s parody against Williams, Chambers, EMI Music Publishing Ltd and BMG Music Publishing Ltd.
Ludlow appears to have been prepared to allow Williams and Chambers to use lyrics from the songs but a dispute arose over Ludlow’s demand for 50% of the copyright (including music and lyrics) in the new song. EMI and BMG had very reluctantly offered 25% to Ludlow.
No agreement had been reached by the time the album was released in late 1998. The track had been recorded between March and June of that year. Unsuccessful negotiations took place during the latter half of 1998 and throughout 1999. Ludlow finally sued in February 2000 for infringement of copyright claiming, amongst other things, a permanent injunction.
Despite finding that one verse in four had been taken, the judge’s view was that “the extent of copying is substantial, although not by much”. He found that “”Jesus In A Camper Van” takes the central idea from “I Am The Way”, namely that the son of God attracts bad luck by going round saying “I am the way”, and embodies it in virtually identical words”.
This confirms existing case law: whether a part of a copyright work which has been copied is “substantial” is assessed on a qualitative basis rather than quantitatively. The court will look at how important the part copied is in relation to the whole of the work. The judge did not elaborate but admitted that “the point is one of first impression”.
The judge refused to decide whether to grant an injunction without a full hearing. He acknowledged that a copyright owner is not to be forced to sell his property at a reasonable market value and a defendant is not permitted to buy the ability to infringe rights by the payment of damages. However, there are exceptional circumstances where an injunction will be refused and the judge believed it was at least arguable that this was such a case and a full hearing would therefore be necessary.
The judge indicated that Ludlow was entitled to substantial and possibly even exemplary damages (to reflect the possible flagrancy of infringement). He noted that the album cover wrongly stated that Ludlow had consented to the use of the lyrics.
But the sting in the tail is that it seemed to the judge “very possible” that Ludlow may have overestimated the value of the infringed part of the lyrics and might recover less than what had been offered, possibly ending up having to pay the whole of the costs of the action.
Unless the case settles, there will now be hearings to decide whether to grant an injunction and to determine the level of damages or profits due to Ludlow. In the light of the judge’s comments on the level of damages, any judicial conclusions if these hearings take place will make interesting reading.
From a commercial standpoint, the case confirms the importance of obtaining all necessary third party consents before the printing of packaging and release of records. Publishers clearing rights also need to consider their negotiating strategy very carefully if they wish to retain any credible threat of an injunction.