It is conceded on the one hand (as is obvious to the ear) that the two works show considerable
similarities, and on the other hand that the composer of Whydid not intentionally copy it from
In a Little Spanish Town; but it was found by [the court of first instance] that the composer of
Whymust at some time and in some circumstances have heard In a Little Spanish Town...[N]either intention to infringe, nor knowledge that he is infringing on the part of the defendant,
is a necessary ingredient in the cause of action for infringement of copyright. Once the two
elements of sufficient objective similarity and causal connection are established, it is no defence
that the defendant was unaware (and could not have been aware) that what he was doing
infringed the copyright in the plaintiff ’s work. ...[T]here were three possible explanations of the similarities: conscious copying, unconscious
copying, coincidence. The first the judge rejected. He accepted the denial of the composer of
Why. This is a finding of primary fact, and it depends ultimately on credibility. The plaintiffs do
not seek to disturb it. This reduces the possible explanations to two: unconscious copying, or
coincidence. The judge did not reject the possibility that “unconscious copying” of musical
works can occur. He proceeded to consider, in the light of the conflicting expert evidence, which
was the more probable explanation of the similarities, unconscious copying, or coincidence.The judge was not satisfied that the similarities were due to unconscious copying. This, no doubt,
was an inference of fact ... No attempt has been made to demonstrate that he has overlooked or
misunderstood any of the evidence.The degree of objective similarity is, of course, not merely important, indeed essential, in
proving the first element in infringement, namely, that the defendant’s work can properly be
described as a reproduction or adaptation of the copyright work; it is also very cogent material
from which to draw the inference that the defendant has in fact copied, whether consciously or
unconsciously, the copyright work. But it is not the only material. Even complete identity of the
two works may not be conclusive evidence of copying, for it may be proved that it was
impossible for the author of the alleged infringing work to have had access to the copyright work.
And, once you have eliminated the impossible (namely, copying), that which remains (namely,
coincidence) however improbable, is the truth; I quote inaccurately, but not unconsciously, from
Sherlock Holmes.EXAMPLE 3:That subconscious copying may be an infringement is left open as a possibility
in the Francis Day v. Broncase. Since Bron, U.S. courts have in fact held that
subconscious copying can infringe.The most famous case involved George Harrison, then a member of the Beatles
pop group. Harrison was held to have infringed copyright by subconsciously
copying the Chiffons’ hit song He’s So Finewhen he composed his own hit My
Sweet Lord. Harrison had heard the earlier song eight years previously when it
was on the charts and getting regular airplay.A U.S. District Court held that he must have unwittingly copied it when he was
stringing My Sweet Lordtogether nearly a decade later: he had access to the
first tune, the two works were substantially similar, and he could not dispel the
inference of copying that arose after access and similarity were proved.138