Unsuccessful copyright claim against Madonna: Coffey v Warner Chappell Music & Others

A songwriter’s claim for infringement of copyright in respect of an allegedly infringing song co-written by Madonna and Patrick Leonard has been struck out.

The claimant, Elizabeth Janie Coffey, brought the action against Warner Chappell Music, the publishers of Madonna’s songs, Warner Music UK, her record company  and EMI Music, Patrick Leonard’s publisher.

Coffey claimed that the copyright in a song she had composed between 1995 and 1996 and later recorded, entitled “Forever After”, had been infringed by a song co-written by Madonna and Leonard entitled “Nothing Really Matters”, which appeared on Madonna’s album “Ray of Light” released in 1998. The song was also released as a single and is available as a ringtone.

The first issue considered by Mr Justice Blackburne was what was capable of constituting an original musical work for the purposes of copyright. Coffey’s position was that her copyright had been infringed in respect of three features within her song “Forever After”, namely the vocal expression or “timbre” of the voice, its general pitch contour and the syncopation of or around the words ‘does it really matter’. She claimed that these three features together constituted an original musical work and that the words ‘does it really matter’ were at the heart of the song, being repeated throughout it.

The defendants argued that these three features were not capable of constituting a musical work in which copyright could subsist because they comprised no more than features of or extractions from the song. The defendants’ additional defence was that in any event, no copying had occurred.

The judge noted that the three features appeared to relate mainly to performance characteristics and not to the actual notes composed which accompanied the particular phrase in question. Such performance characteristics were not the legitimate subject of copyright protection in a musical work, unlike the notes composed.

The judge held that copyright subsists in a work in its entirety and not in parts of or extracts from the work. The question of what the copyright work is in any given case was a matter for objective determination by the court, not by what the claimant alleging infringement asserts that it is.

The judge held that if part of a work is copied, copyright in the work in its entirety might be infringed if the part copied constituted a substantial part of the whole work. It was not open to the claimant to select the elements of the work on which she relied in an attempt to demonstrate that a substantial part of that work had been copied. In this case, he held that no substantial part of the whole work was copied.

The judge considered the judgment of Mr Justice Laddie in IPC Media Ltd who held that the consequences of confining the subject matter of the claimant’s claim too narrowly might be to deprive the defendant of a good defence that he did not take a substantial part of the true copyright work and also to create layers of different artistic copyrights.

Although not relevant in the case in question, the judge accepted that circumstances may exist where a part or element of a larger work could be regarded in itself as constituting a copyright work. But the three “somewhat elusive” features argued by the claimant could not be viewed in this way.

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