What makes a song original? Ed Sheeran, Matt Cardle, and the blurred lines of musical plagiarism

There will never be a perfect system for determining the legal originality of a song.

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What makes a song original? It’s a question that has preoccupied music fans, artists and copyright experts alike in the past year. The controversial, landmark “Blurred Lines” case, in which Robin Thicke and Pharrell Williams were ordered to pay £5.3m after their 2013 summer hit was found to be too similar to Marvin Gaye’s 1977 song “Got To Give It Up”, has seen a landslide of artists claiming that the biggest singles of the moments have plagiarised key elements of their songs.

Sam Smith settled out of court with Tom Petty, adding his name to the list of songwriters for the 2014’s “Stay With Me” (a UK number one and the Grammy’s Record of the Year) after Petty noted it was melodically similar to his 1989 song “I Won’t Back Down”. Mark Ronson added five new writers to his 2015 song “Uptown Funk”, which was the biggest selling song of that year, acknowledging a debt to the Gap Band’s 1979 track “I Don’t Believe You Want to Get Up and Dance (Oops, Up Side Your Head)”.

Last month, Justin Bieber and Skrillex rejected claims from singer-songwriter White Hinterland that their 2015 UK and US number one single “Sorry” took its signature vocal loop from her 2014 song “Ring the Bell”. Her lawsuit alleges, “the identical and/or striking similarity […] surpasses the realm of generic coincidence and independent creation”.

This month, Led Zeppelin’s Jimmy Page and Robert Plant will appear in court to face accusations that their (in)famous 1971 hit “Stairway to Heaven”, relies heavily on the lesser-known instrumental song “Taurus” by Spirit.

This week, the news of a new lawsuit has hit headlines, this time over music by Ed Sheeran and X Factor winner Matt Cardle: the ultimate battle of white male mediocrity. California songwriters Martin Harrington and Thomas Leonard claim that Sheeran’s 2014 song “Photograph” is a “note-for-note” copy of a song they wrote for Cardle released back in 2010 called “Amazing”. Notably, the songwriters are being defended by Richard Busch, the very same lawyer who won the copyright infringement case against Robin Thicke and Pharrell Williams.

These kinds of disputes seem more frequent than ever, but they’ve been rattling on for over a century: there are music copyright infringement cases dating back to the first half of the 19th century. A hundred years ago, an artist called William Cahalin complained that his song, “You Will Never Know”, was copied by Al Piantadosi in his wartime hit “I Didn't Raise My Boy to be a Solider”, and took him to a US court. The famous Judge Learned Hand approached the case not dissimilarly to the Blurred Lines judge. After transposing the two melodies into the same key, Hands made a note-by-note comparison, drawing “lines connecting identical pitches occurring at the same points in the two tunes”, eventually ruling in favour of Cahalin.

This comparative method’s focus on melody is its strength and its weakness: as melody is the musical element most easily perceived by the average listener, it is an effective way of communicating the similarities of a track to a jury, but it is also extremely reductive, and therefore open to abuse. (Not to mention that similarity alone is not proof of the origins of a piece of music). This is how many people feel the “Blurred Lines” case went wrong: as Rhodri Marsden wrote for the NS last year, the case was won on two similar “melodic fragments” that were extremely short: they amount to one line in each song, “I used to go out to parties” from “Got To Give it Up”, and “And that’s why I’m gon’ take a good girl” from “Blurred Lines”.

But with the internet allowing the average listener to compare melodic fragments side by side with new ease, this comparative method is only becoming a more prominent way of determining copyright infringement inside and outside the courtroom. This onslaught of recent legal cases highlights the extent to which the world of pop is based on a relatively small pool of song structures and melodic tropes, and how far the internet is a powerful tool for tracing both influence and plagiarism. They also demonstrate how easily those two things are confused.

There will never be a perfect system for determining the legal originality of a song. Even Judge Learned Hand knew this: in 1923 (quoting an 1879 text) he insisted, “Works alike may be original. It is not essential that any production, to be original or new within the meaning of the law of copyright, shall be different from another.”

But as music in the digital age is changing our perception of influence and originality, and at an increasingly fast rate, it feels unfair to musicians to use an outdated and irrelevant system for judging their originality. 

Anna Leszkiewicz is culture editor of the New Statesman.

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