The Singapore Law Gazette

We Can Achieve: When Restraint is a Virtue

If discretion is the better part of valour, restraint might be its best.

The Ministry of Culture, Community and Youth (MCCY) took an interesting approach towards the recent copyright infringement of our popular National Day song, “Count on Me, Singapore”. And there’s a lesson in it for us all.

Most Singaporeans are familiar with the original 1986 National Day favourite. Sung by Clement Chow and composed by Hugh Harrison, it is one of the country’s catchiest patriotic songs. So, when a version with an identical melody line and largely similar arrangements surfaced, with all mention of “Singapore” replaced with “India”, what was MCCY’s take?

In acknowledging this other version, titled, “We Can Achieve”, the MCCY initially stated, via a Facebook post, that they would be investigating potential copyright infringement by the creators of “We Can Achieve”. However, that post was later edited, removing any mention of investigation. Instead, MCCY decided that it would take the high road and that “imitation is the best form of flattery”.¹Ministry of Culture, Community and Youth, Facebook post <https://www.facebook.com/MCCYsg/posts/we-have-noticed-that-a-remixed-version-of-our-national-song-count-on-me-singapor/4069290856462352/>

What gives?

After all, the other version contained no acknowledgment of how the original version of the song was written for Singapore.²Nigel Chua, “India composer claims “We Can Achieve” written 3 years before “Count on Me, Singapore” in 1983”, Mothership, (Singapore, 16 March 2021) <https://mothership.sg/2021/03/joey-mendoza-count-on-me-singapore-india/> accessed 31 March 2021 Even the original composer, Hugh Harrison, took (to use a recently oft-repeated phrase) umbrage.

Despite the potential for a litigious engagement, restraint, in the right situation, can pay.

Imagine if the MCCY had chosen to go down the warpath.

A letter of demand, however well crafted, might get a withering reception from some members of the public.

With social media providing such a readily available platform (and echo chamber) for partisan prejudice, unleashing a letter of demand in the wrong situation would be like (as David Bowie would say) putting out the fire with gasoline.

Consider the example of how “telecommunications behemoth”,³Griffith Hack, “’Cease and desist… please’: why Nokia should take a leaf from Jack Daniel’s playbook”, Lexology, (Australia, 8 February 2015) <https://www.lexology.com/library/detail.aspx?g=d238d7c5-8663-45d0-8e14-536d69abd04e> accessed 31 March 2021 sent a 104 page letter with the usual threat of court proceedings to an alleged infringers (a start-up). The social media public took to characterizing them as a “corporate bully” and a “Goliath” to the start up’s “David”. They may have been perfectly justified in their claim, but the court of public opinion is not swayed by legal precedent.

Like authors, lawyers need to know their target audience.

This is not to say that one should condone an alleged infringer’s actions, rather, simply, we should all be reminded that the right situation requires the right touch.

Consider Jack Daniel’s very polite cease-and-desist letter that went viral.⁴Avi Dan, “The World’s Nicest Cease-And-Desist Letter Ever Goes Viral, Sells Books”, Forbes, (26 July 2012), <https://www.forbes.com/sites/avidan/2012/07/26/the-worlds-nicest-cease-and-desist-letter-ever-goes-viral-sells-books/?sh=3ec0f87e6c11> accessed 30 March 2021 There, the legal team took the road less travelled when bringing an allegation of infringement to the attention of the infringer.

The alleged infringer issued a book whose cover looked similar to the label on the bottles of Jack Daniel’s.

Now (as many other writers are) the author was an avid user of the whiskey. That was as good a starting point for the letter as any.

The one-page letter eloquently explained the rationale behind their actions and appealed to the writer’s love of Jack Daniel’s. It even volunteered to pay for redesigning the book cover.

The letter reads:

“We are certainly flattered by your affection for the brand, but while we appreciate the pop culture appeal of Jack Daniel’s we also have to be diligent to ensure that Jack Daniel’s trademarks are used correctly… . As an author you can certainly understand our position and the need to contact you. You may even have run into similar problems with your own intellectual property.”

Courtesy did pay off here, as the infringer agreed to change the cover and did so without taking up the offer of payment from the company. When the letter went viral, it was praised – coming over well.

According to another story, another lawyer sent a similar letter to legendary comedian Bill Murray, taking not only the unconventional route but adding a touch of dry-humour:⁵Anca Draganescu-Pinawin, “Threats with a smile: The cease-and-desist letter in a time of social media”, Novagraaf, (29 September 2020) <https://www.novagraaf.com/en/insights/threats-smile-cease-and-desist-letter-time-social-media> accessed 30 March 2021

“This is the part where I’m supposed to cite the United States Copyright Act, excoriate you for not complying with some subparagraph that I’m too lazy to look up and threaten you with eternal damnation for doing so. But you already earned that with those Garfield movies. And you already know you can’t use music in ads without paying for it.”

Different situations call for different measures.

As all practitioners know, the practice of law demands more than a command of the law – being a good lawyer requires wisdom and an ability to judge what is the move to make in any situation. You can benefit your client by applying the right touch at the right time.

Yes, we lawyers are trained to be skeptical of our opponents’ intentions, and we spend our time sharpening our ability to challenge propositions, and go after an opponent with adversarial rigour.

But sometimes, just sometimes, being that model of restraint might be something that (as we sing every year), we can achieve.