• Rosie Burbidge

The rudimental rules of copyright infringement


Rudimental's score for Waiting All Night

The popular song Waiting All Night by the band Rudimental was not copied from a 2007 song Can You Tell Me, performed by Kelly-Marie Smith, according to a ruling by Mr Justice Zacaroli on 11 August 2021 (Smith v Dryden & Ors [2021] EWHC 2277 (IPEC)).


Ms Smith brought the action for copyright infringement in the English IP Enterprise Court (IPEC), claiming that both the music and lyrics of Rudimental’s song constituted copyright infringement. Waiting All Night was primarily written by James Newman, and reached number one in the UK Singles Chart in 2013.


Ms Smith composed Can You Tell Me late one night in 2001 in her flat in Crystal Palace. She argued that there was a high degree of similarity between the two songs, including the repetition of the phrase “tell me that you” followed by simple two-word phrases, with a similar stress in the melody.


The judge’s conclusion was based on three main findings:


(1) Despite the similarities between the two songs, there were “not insignificant” differences: “it is plausible in my view that two persons trying to write a hit song in the genre of Waiting All Night would come up with the lyric ‘tell me that you need me’ and would set it to music in a way that is similar to Can You Tell Me.”


(2) It is unlikely that Mr Newman had access to Can You Tell Me. It was never produced commercially and a video of it being performed was only posted to two social media sites and made available to some people in the music industry. The argument that he would have accessed the video “is extremely weak and involves too many tenuous links”.


(3) Examination of a voice memo recorded by Mr Newman on his iPhone in June 2012 “provides strong support for the conclusion that Mr Newman came up spontaneously and independently with the allegedly offending lyrics and melody in the course of trying out various ideas”.


A separate claim regarding the co-authorship of Can You Tell Me was adjourned.


To find out more about the issues raised in this case including trade mark disputes and filing contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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