Credit Harald Krichel via wikimedia commons licensed under CC 3.0

Can you own a chord?

By Emma Dunn

Emma Dunn explores if the ever-increasing number of music copyright court cases is a problem.

Imitation is the sincerest form of flattery, right? For some, maybe, but for the estate of Ed Townsend, co-writer of Let’s Get It On with Marvin Gaye, it’s seen as “copying and exploiting”, and worth £90m in damages. Sheeran was brought to court recently over alleged similarities between his song, Thinking Out Loud, and Gaye’s bedroom classic, citing imitation of the latter’s key elements. Recently, music copyright cases have boomed, especially in the USA. The trigger for this explosion was none other than Robin Thicke, who felt the effects of crossing a not-so-blurred copyright line in 2015, losing £4.7m and half of Blurred Lines’s royalties to Marvin Gaye’s heirs. Recognised as one of the most famous (and expensive) music plagiarism cases, it seems to have triggered a rise in lawsuits targeting plagiarism, deliberate or accidental, in music. 

Sheeran is no stranger to copyright law. His songs, Photograph and Shape of You, were also pulled before juries because of imitation concerns, but similarities were not deemed significant enough to prove the claims. Speaking about the case, Sheeran said that the ever-increasing number of “baseless” copyright claims is damaging to the music industry and that “coincidence is bound to happen if 60,000 songs are being released every day on Spotify”. It begs the question: can an artist ever truly own music? What is the most important battle: the protection of existing music, or the protection of creativity without fear of sparking an accidental lawsuit?

It’s hard to draw a definitive line between the breaching of ownership and taking inspiration from the greats. Iconic artists such as Led Zeppelin, The Verve, and Vanilla Ice (a modern legend – nobody can claim not to know Ice Ice Baby) have all faced the wrath of copyright infringement. The Verve famously omitted their famous Bittersweet Symphony from practically all live performances to prevent lining the pockets of Rolling Stones’ former manager, Allen Klein, having been pulled up for copyright issues after sampling a bit too much of a Stones’ song for the track. Although proving that it’s not uncommon for artists to take inspiration from others, the result was bittersweet.

Even Ed Sheeran admitted to taking inspiration from (and then reiterated that he issued fair compensation to) other songs and artists. Paul McCartney, beloved for his work with the Beatles and, er, collabs with Kayne West and Rihanna, was said to have quoted Pablo Picasso in reference to the work of the Beatles, saying, “a good artist borrows, a great artist steals”. This is not to say that the Beatles defrauded other musicians – in Lennon’s words, “it isn’t a rip-off, it’s a love-in”. It is simply the consequence of operating in a world where music springs from every crevice. It’s hard to be immune to inspiration, no matter what field you occupy. Legal issues arise when plagiarism is blatant, intentional, and harmful.

Proving copyright infringement in court draws on two points. Firstly, the artist had access to the accusers’ music prior to the production of their own work. Secondly, the songs bear a substantial enough similarity to the average listener to warrant legal action. The case for Sheeran’s Shape of You seems to follow this pattern. The substantial similarity was not proven as the judge reckoned that despite a short, phonetically similar two-word refrain, the relevant parts of the song were different enough to rebut the claims of plagiarism. (Brutally, the judge also doubted that Sheeran had access to the song prior to his recording, as he, himself, had never heard of it.) However, with the newer case against Sheeran, you cannot deny that the artist would have had access to Gaye’s Let’s Get It On, and so the grounds for proving infringement are stronger. 

Unsurprisingly, Sheeran isn’t a big fan of the number of copyright cases springing up. Not only did the cases hurt his paycheck, but he has also said that both his own and his co-writers’ creativity and mental health have taken a hit, highlighting the detrimental effects of copyright lawsuits. If copyright truly has creativity in a chokehold, and innovation can no longer progress because everything has been done before, what future is there for music? 

Some argue that, as with evolution, the reduction of resources forces further creativity to ensure survival. Others, not convinced by this theory, claim that it’s becoming impossible not to plagiarise. Blame is placed on the sheer volume of music produced daily, facilitated by streaming services such as Spotify, and on the lengthy protection of copyrighted tunes, seemingly “valuing earlier creativity over newer creativity”. This is important as those most vulnerable to the damaging effects of copyright lawsuits will surely be the smaller, up-and-coming musicians; those without the resources to spend on million-pound lawyers and lawsuits. If copyright does stifle new music the way some think it could, the increasing number of copyrighted songs and musical progressions could turn into a minefield for new artists.

There’s certainly money in music copyright claims, as seen in historical lawsuits, and so one must wonder whether all claims in this field are truly to protect a legacy or if other motives are at play. 
However, with Sheeran vehemently denying taking any unintentional inspiration from the song, the result of Thinking Out Loud vs Let’s Get It On is yet to be decided. Creative processes aren’t exactly tangible, so it’s certainly difficult to prove whether musical theft is deliberate or accidental. With the number of lawsuits he’s racked up, it could be that plagiarism is just another of Sheeran’s Bad Habits, but only time (and a jury) will be able to tell.


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