Waiting all night - a rudimental lesson about co-incidental similarities

September 21, 2021

The High Court has dismissed a claim for copyright infringement in relation to the hit Rudimental song Waiting All Night.[1]  Kelly-Marie Smith, the composer and lyricist of a song called Can You Tell Me, brought an action against the Rudimental band members and associated parties, claiming that the lyrics and melody of the Waiting All Night chorus were copied from Can You Tell Me.  Yet, despite the similarities, unusual contemporaneous evidence of the creative process for Waiting All Night suggested that its chorus was written independently.

Judgment

After assessing the similarities and differences in considerable detail, Zacaroli J dismissed the claim, concluding that James Newton, the main defendant in the action, did not copy any part of Can You Tell Me.  Although there were similarities between the two choruses, there were also significant differences.  It was unsurprising that two people writing a song in the respective genres of each song and independently would settle on the lyric “tell me that you need me”, and it was reasonable that they might set it to music similar to Can You Tell Me.  On the evidence provided, it was unlikely that JN had access to Can You Tell Me.  Finally, the voice note made by Mr Newton at the time of developing Waiting All Night suggested that he had created the lyrics and melody “spontaneously and independently … in the course of trying out various ideas”.

Comment

This case provides a helpful reminder that, ideally, songwriters and other creatives should keep records and evidence of their creative process, where feasible. Documenting the evolution of a copyright work could assist creators in proving ownership of their works and could be used as evidence, should they ever need to produce it in their defence to a claim for copyright infringement.  In practice, though, it may well be hard to capture the exact moment of the genesis of a song – which makes the facts of this case so remarkable.

The case also neatly illustrates that the important principle that mere co-incidence is not enough to demonstrate infringement: a writer will not infringe copyright in music or lyrics of an earlier song if the new works have been created completely independently of the earlier works.  Of course, where there is a strong similarity – particularly of lyric and melody combined and especially for the “hook” of a song – it quickly becomes a practical question of the likelihood of access to the earlier works. But as this case shows, the mere possibility of access may well not be enough, especially if there is evidence that positively indicates starting from scratch.

To read the full article, click here.  Written for Entertainment Law Review.

[1]Smith v Dryden and others [2021] EWHC 2277 (IPEC) (11 August 2021).

Nick Eziefula
Nick Eziefula
Nick Eziefula
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Partner
Rachael Heeley
Rachael Heeley
Rachael Heeley
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Associate

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