Francis Day and Hunter Ltd v Bron: CA 1963

The test of substantial similarity in copyright infringement cases is an objective one. That assessment is for the court with such assistance from the evidence and parties as it can muster. To be an infringement there must be ‘some causal connection’ between the form of the infringing work and the form of the copyright work.
Wilmer LJ said: ‘I do not think it could be doubted that there was material on which to base the inference that the composer of ‘Why’ deliberately copied from ‘Spanish Town’. Were that the right inference, I am satisfied that the degree of similarity would be sufficient to constitute an infringement of the plaintiffs’ copyright.’ Although it was possible to demonstrate that a person had infringed copyright without intending to do so, it was nevertheless necessary to establish ‘proof of familiarity’ with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work
Diplock LJ said: ‘to constitute infringement of copyright in any literary, dramatic or musical work, there must be present two elements: first, there must be sufficient objective similarity between the infringing work and the copyright work, or a substantial part thereof, for the former to be properly described, not necessarily as identical with, but as a reproduction or adaptation of the latter; secondly, the copyright work must be the source from which the infringing work is derived.’


Diplock LJ , Wilmer LJ , Upjohn LJ


[1963] Ch 587, (1963) 1A IPR 331, [1963] 2 All ER 16


England and Wales

Cited by:

CitedDesigners Guild Ltd v Russell Williams (Textiles) Ltd CA 26-Mar-1999
The claimant alleged copying of designs. The defendant appealed a finding that copying had taken place.
Held: The rejection of the dissection test in Ladbroke was as to the subsistence of copyright and not as to infringement. Evidence of those . .
CitedDesigners Guild Ltd v Russell Williams (Textiles) Ltd (Trading As Washington DC) HL 28-Nov-2000
Copyright Claim: Was it Copied, and How Much?
The claimant sought to enforce its copyright in artwork for a fabric design Ixia, saying the defendant’s design Marguerite infringed that copyright. Two issues faced the House. Just what had been copied and if any, then did this amount amount to the . .
CitedSawkins v Hyperion Records Limited ChD 5-Jul-2004
The claimant had edited ancient music scores so as to be ready for performance for the defendant. He asserted a copyright. The defendants argued that the contribution was too little to create a copyright.
Held: To succeed Dr Sawkins had to . .
CitedZS v FS (Application To Prevent Solicitor Acting) FD 24-Oct-2017
Discosure of Confidences must be at risk
H sought to restrain W’s solicitors from acting. The firm was one of six firms approached to consider representing H, and he now said that certain matters had been diviluged to the firm.
Held: The legal principles were clear, and it was for H . .
CitedSheeran and Others v Chokri and Others ChD 6-Apr-2022
Insufficient Evidence to say Song was Copied
S sought a declaration that he had not copied the defendant’s song with his own. The court examined the musical details of both songs.
Held: The song was not copied. The defendant had not shown that the claimant knew anything of the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 07 April 2022; Ref: scu.191982