SW Legal Educational Publishing

Andrew Lloyd Webber's "Phantom Song" May Have Infringed
Description Appeals court reversed summary judgment in favor of the writer of "The Phantom of the Opera," finding that the author of an earlier copyrighted song showed "striking similarity" between the two songs and noted that infringement can be unintentional.
Topic Intellectual Property
Key Words Infringement, Copyright, Song
C A S E   S U M M A R Y
Facts Ray Repp has written and published over 120 musical compositions over 30 years, including the song "Till You" in 1978, when it was also registered in the Copyright Office. The song appears on thousands of published music sheets and has been publicly performed. Repp sued Andrew Lloyd Webber, composer of musicals included "Cats," "Evita," and "Phantom of the Opera," for infringement, claiming that "Phantom Song" infringes on "Till You." Webber denied the allegation, claiming he wrote his song in England in 1983 and 1984 as part of "Phantom of the Opera" and that he never heard of Repp or of "Till You." Music experts offered conflicting testimony about the similarity between the pieces. The trial court granted summary judgment for Webber. Repp appealed.
Decision Reversed. "We have held that where there are striking similarities probative of copying, proof of access may be inferred.... The fact that infringement is 'subconscious' or 'innocent' does not affect liability...." Summary judgment is improper because "defendants failed to demonstrate the absence of evidence supporting the elements of plaintiffs' copyright infringement case." The evidence presented by Repp would allow a reasonable fact-finder to find in his favor. Plaintiff did not have to directly contradict Webber's assertion about the writing of "Phantom Song." Repp "established a prima facie case of access through striking similarity, which certainly includes the element of probative similarity."
Citation Repp v. Webber, ---F.3d--- (1997 WL 793284, 2nd Cir.)
or
132 F.3d 882 (2nd Cir., 1997)

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