This is a guest post on music copyright law by Oliver Lock, and Owen O’Rorke, who, respectively, work in Reputation Management and Intellectual Property & Commercial, at UK law firm Farrer & Co. They wrote this column in response to Ed Sheeran’s recent plagiarism case court victory, and in it they discuss when – and when not to – bring a claim like this, the career implications of being part of one, the differences between US and UK plagiarism lawsuits – and whether the laws used need updating in the face of new technology.
While the music industry rightly celebrates artists for innovation, the DNA of popular music has always been based on certain recognised tropes and formulas. But if there ever was a time when imitation would have been seen as a form of flattery, this no longer rings true in the industry today. Copyright disputes, in some cases involving decades-old material, can be complicated by multiple different owners and rights holders – whether co-authors, estates, record companies or publishers. They can result in multi-million pound settlements or, just as bad, protracted legal battles during which publishing revenues may be frozen.
Under English law, claims require an element of actual copying (consciously or not): so a case will often hinge on the likelihood of access by an alleged infringer to the earlier work. However, with so many online streaming and video platforms hosting so many compositions by lesser-known artists, the lines are increasingly blurred when it comes to proof of copying.
Copyright subsists in both original musical works and recordings, and (in English law) is infringed if the whole or part of such works are reproduced in any material form. Those rights are further infringed when the work is distributed, communicated to the public and so on.
Artists from Pharrell Williams and Robin Thicke, to Katy Perry and Led Zeppelin have found themselves parties to high profile copyright disputes in the US. When the former duo’s Blurred Lines was subject to a successful claim by Marvin Gaye’s estate, there was no suggestion the similar groove had been sampled without permission (which would also have been an infringement of the rights in the recording), but that a new recording was too similar in feel to the groove for Got To Give It Up (Pt.1) – i.e. an infringement of an aspect of the composition.
The decision in that case, and the size of the award, sent shockwaves through the industry. Many creatives consider it to be a dangerous precedent, while some legal commentators see it as an anomaly owing to an emotionally-swayed jury. Unlike in the US, copyright violation cases in the English courts (including damages) are not decided by jury, but rather a specialist judge with knowledge of the issues in play.
However, in recent years, more high-profile cases involving musical copyright infringement are being heard in the English courts too – the most recent of which was brought pre-emptively by Ed Sheeran against others who had declared that the song ‘Shape of You’ infringed their copyright. While he had previously (in 2017) agreed out of court to co-credit the writers of TLC classic No Scrubs, this time Sheeran decided to take a stand against a newer claim made by less recognised artists – and won.
When to bring a claim
Generally, it is for the claimant to prove ownership in the copyright alleged to have been infringed. However, if the alleged infringer is found to have had access to the original work, and there is a sufficient degree of similarity between them, the evidential burden will shift to them. For very well-known works, this is easy enough to prove.
There will rarely be direct evidence of subconscious copying, however – especially with lesser-known works – so here the judge has to reach a conclusion based on inferences from other evidence.
Bringing a claim (for whatever reason) can be costly. Putting any point of principle to one side, it is worth weighing up:
- the status and recognition of the original work;
- the profits of the infringing work that could credibly be attributed to the part allegedly copied, or how damages might otherwise be calculated (e.g. a notional licence fee);
- the costs involved in bringing a claim (whether in the High Court, or the UK’s lower-cost Intellectual Property and Enterprise Court (IPEC));
- the reputational consequences of a public spat, for either party;
- the availability of insurance and relative financial position of both parties; and
- the likelihood of success, or at least settlement, based on the merits of your specific case.
We might infer from the relative scarcity of English cases that the majority of such claims either settle, or are litigated in the US (if the upside in terms of global profits justifies it). But when Sheeran took a stand, by bringing the claim himself – and so forcing his accusers to front up and demonstrate the merits of their own case – he asserts it was a principled stance.
Sheeran noted after his win in the High Court that “claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no basis for the claim. It’s really damaging to the song-writing industry.”
Not every artist will have Sheeran’s means of course, but the hope is that other artists will benefit by him having taken this action.
Reputation and career
In a joint statement following the High Court judgment, Sheeran and the other authors of ‘Shape of You’ said that in addition to the financial cost, their mental health and creativity had suffered as a result of having to take the case through to trial.
No artist wants to see their work copied without credit or due recompense. This is partly due to the hours, effort and love which can go into arriving at the final product. But it is also a question of one’s livelihood: not just the profits of a particular work, but also of the reputation on which future careers are based – and the enduring value of a back catalogue.
The more successful an individual is in the industry, the greater the risk to their reputation from accusations of deliberate copying. The damage that a well-known artist could suffer in these circumstances – the airing of their dirty laundry at trial, the suggestion of ‘no smoke without fire’ – means that many artists continue to settle and avoid lengthy trials.
Where a well-known artist is involved, not only will there be media coverage of the trial, but there may be press interest from an early stage. PR can be leveraged by would-be claimants to add pressure to settle or simply raise their profile. However, ‘David and Goliath’ cases can cut both ways. The major artist may be seen as heavy-handed, or a creative magpie; the smaller artist may be cast as a chancer and subject to social media abuse by the larger artist’s fanbase. Whoever is in the right, these cases carry the real risk of reputational damage.
Brand protection and creativity
If an artist allows copying of their music to go unchecked, it can lead to a decline in brand value. Conversely, being seen to be litigious can have dissuasive function – if an individual actively pursues any perceived breaches of copyright (and is known to do so), people might think twice about copying where they were otherwise willing to risk it.
Do copyright laws need updating?
When the Copyright, Designs and Patents Act 1988 came into force (in 1989), the consumption and composition of music would have been very different to how they are now. Various attempts have been made to update this law – including, in the past ten years, by introducing new ‘fair dealing’ exemptions to reflect modern formats and usage. However, by and large these will not have much impact on commercial uses of copyright works.
High-profile (and controversial) EU copyright reform has focused on online use of works, including streaming and platform licensing: all valuable and necessary in terms of revenues, but not really affecting the creative process itself.
Song-writing teams are constantly getting bigger, making it harder to track influences. In the early days of rock and roll, there was no cheap music-production software offering individuals the same sample packs, beats, arpeggiators and algorithms that can lead to similar outcomes from entering similar basic chord progressions.
It has also become harder to definitively prove, or disprove, access to the original work since the 1990s. Back in the days when Spotify/YouTube didn’t exist, proof of access might have been linked to more provable, witnessed events: buying records, attending concerts, even hanging out backstage. When it comes to subconscious copying, one of the most famous early cases – George Harrison’s My Sweet Lord – could at least show that the Chiffons’ He’s So Fine would have had a lot of radio airplay in the mid-1960s.
As Sheeran put it: “there’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year, and there’s only 12 notes that are available.”
One obvious area for reform in the US would be to limit the role of the non-expert just in the process. But another area for possible regulation (in the UK and EU too) will be Artificial Intelligence.
As AI becomes increasingly relied on in the musical creation process, it seems to us there will only be more and more similar music in the streaming sphere. Copyright laws will always need tuning-up to reflect the changing nature of the music industry but, as ever, the judiciary and legislation will be behind the curve of the technology – and the innovators.
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