We were instructed by Kobalt Music Group (a leading music publishing company) to defend a copyright infringement claim brought against it in relation to its interest in the Lily Allen song “Air Balloon”.
The claim was brought by a singer songwriter, Robert McDowell, who claimed that Air Balloon reproduced various substantial parts from his composition “Gimme Repetition”.
Kobalt applied to have the claim struck out and/or summarily dismissed and its application was heard in the Intellectual Property Enterprise Court on 8 July 2015 by His Honour Judge Hacon. Waterfront partner, Piers Strickland, conducted the advocacy on behalf of Kobalt. To support the application, Kobalt relied on expert analysis of the respective pieces of music by the renowned musicologist, Peter Oxendale.
Upon hearing submissions from each side, reviewing the expert evidence and crucially listening to the respective pieces of music in open court, HHJ Hacon satisfied himself that the respective pieces of music were significantly different and that Mr McDowell did not have a reasonable prospect of successfully defending the claim. As a result, HHJ Hacon summarily dismissed the claim and awarded substantial costs in favour of Kobalt.
Commenting on the case, Piers Strickland said: “unmeritorious claims such as these are a source of great irritation for clients and they need to be dealt with firmly and efficiently. The court procedure rules provide two different options for achieving an early dismissal of claim. While it is often difficult to persuade a court that a claim is sufficiently hopeless that is deserves to be dismissed, on occasion it is the correct thing to do. Otherwise, a full set of proceedings and a trial will threaten to cause substantial unnecessary cost and inconvenience”.
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