Ed Sheeran sued for $20m

Posted by Ben Evans on
News broke this morning that Ed Sheeran, a co-writer and Sheeran's record company and publisher have all been on the receiving end of a copyright infringement action by two songwriters, Martin Harrington and Thomas Leonard. The action claims that Sheeran's single 'Photograph' is musically similar to their own song 'Amazing' and, as a result, the songwriters are seeking damages reported to be in the region of $20m as well as ongoing royalties.

Now, this is a US case (specifically it has been brought in LA) and US and UK laws differ pretty significantly however it is something that is becoming more and more prevalent in the music industry. Recently we have seen the 'Blurred Line' case between Marvin Gaye's family and Robin Thicke.

The 'Big Pimpin' Jay Z case and the 'Stairway to Damages' (sorry,'Stairway to Heaven') case involving Led Zeppelin.

The result of all of these cases which, I should point out, were all brought in LA, is that the music industry is "getting paranoid about copyright" accordingly to Peter Oxendale, a forensic musicologist. Read more here.

So, the question is who owns music, and can somebody own music? Well, in the UK any recorded song essentially breaks down into three different works:

  • Lyrics – these are protected as a literary work (in the same way as, for example a high quality piece of writing such as this post, or a book);
  • Music – by this I mean, essentially, the musical score i.e. the chords or notes that are played. This is protected as a musical work; and
  • Recording – this is what you actually listen to i.e. the recording of the lyrics (sung or spoken) and the music (played by the band).

For completeness I should also say that there are what are known as performers rights involved here also but that's getting a little complex for now so, back to the basics: all three works are protected by copyright (in the UK that's under the Copyright, Designs and Patents Act 1988 ("CDPA") and can be infringed by doing a number of restricted acts without the permission of the copyright owner. The most obvious of these restricted acts is copying the work but they also cover issuing copies of the work to the public, renting or lending the work, performing the work and so on.

Most of the recent cases involve allegations that the music (i.e. the musical score) has been copied. However, in each of these cases the allegation aren't that the music has been copied completely (i.e. these aren't covers) but rather that the two songs are very similar. In the UK this would break down to two basic questions: firstly was the work copied i.e. did the writer of the second song know or have access to the first song and if so did they copy it; and secondly, is what has been copied a substantial part of the first song. The first question is clearly a factual one and involves the party bringing the claim to show, in most situations, that the other party had access to or knew of their song and it can also include what is known as unconscious copying i.e. not deliberately copying the work but the fact that it was so well known and the songs are so similar meant that it had to have been in the mind of the alleged infringer when they wrote their song. The second question is a legal one and the test is not how much of a song has been copied on a quantitative basis (i.e. the judge doesn't get a stopwatch out and see how long each copied section is) rather the test is qualitative (i.e. it depends on how important the elements are) so, for example copying the central riff to a track could be deemed a substantial part even though it is only very short (see, for example, Fisher v Brooker and another [2006] EWHC 3239 (Ch) i.e. the 'Procol Harum' case.

If a party can show that their work has been copied and that what has been copied is a substantial part of the work then they can show infringement of that work and thus can seek damages or an account of profits, an injunction, costs and various other possible remedies. But, the elephant in the room remains with the question 'how similar is too similar' and it's very difficult, if not impossible to answer. Any musician (or Google in my case) will point out that there are basically only 12 notes and there are a limited number of combinations of those notes (ask any punk bands for confirmation). The result of this is that similarity is, at least to some extent, inevitable. Unpicking the issue therefore requires expert evidence from a musicologist and, ultimately, it is down to the Judge to decide.

UK courts have, to date, been relatively reluctant to find in the favour of claimants in such circumstances. The particular issue that the courts must weigh up is that, to put things bluntly, copyright drives the music industry. Without copyright protection record companies/publishers wouldn't invest in artists (because they couldn't protect their investment), artists would struggle to make any money from recorded music and perhaps only live music would be left. It is therefore essential that copyright owners are able to enforce their rights however, this needs to be balanced against the stifling of creativity that results from a fear of proceedings or, more correctly, a fear of the threat of proceedings.

In the UK we haven't therefore seen many successful actions for the infringement of musical works, the more blatant cases are likely settled pre-action (and thus the public don't hear about them) and the less blatant issues are often deemed too risky to take to trial and thus are either settled pre-action or, more realistically, dropped.

It is perhaps not surprising therefore that these more recent cases are in the US (LA) and that the two more recent cases have followed very quickly after the 'Blurred Lines' decision. Expect more to follow in the near future!

About the Author

Ben is a dual-qualified Solicitor and chartered trade mark attorney and advises clients on both contentious and non-contentious intellectual property matters.

Ben Evans
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