Editor’s Note: This week a trial begins in Manhattan to ascertain whether Ed Sheeran violated copyright from Marvin Gaye’s soul classic “Let’s Get It On” in his 2014 hit “Thinking Out Loud”. The heirs of Ed Townsend, Gaye’s co-writer, sued Sheeran in 2017, alleging that the English pop star’s song has “striking similarities” and “overt common elements” to the 1973 tune. This article, written while Sheeran was defending another of his songs over similar claims, was first published on 29 March 2022 and has been republished on 25 April 2023.
There are only 12 notes in the Western musical system. But by grouping them together in different combinations, a guitarist or a pianist, say, could play thousands of different chords, and thousands more arrangements of those same chords. The possibilities are endless.
In pop music, however, familiarity is just as important as novelty. So when does the harmless use of shared conventions become plagiarism?
At present there is a boom in song copyright infringement cases in British and American courts. On 11 March Katy Perry won an appeal in a case concerning her 2013 hit “Dark Horse”. In the same month Dua Lipa was hit by not one but two lawsuits related to her song “Levitating”. And Ed Sheeran’s 2017 single “Shape of You” — the most streamed song on Spotify — is the subject of a plagiarism claim by Sami Switch, a British rapper and singer-songwriter, who claims that Sheeran stole elements of his 2015 track “Oh Why”. Sheeran denies the allegations, and awaits the outcome of a case at the High Court in London.
It’s not that there have been any sudden changes in copyright law in recent years, Hayleigh Bosher, a senior lecturer in intellectual property law at Brunel University and the author of Copyright in the Music Industry, tells me. Since the birth of recorded music there have been cases of alleged plagiarism. Upon the release of “Why” in 1959, sung by Frankie Avalon in the US and Anthony Newley in the UK, copyright cases were launched in both countries alleging that it plagiarised the 1926 popular song “In a Little Spanish Town”, later recorded by Bing Crosby. Another notable case centred around the 1981 Chariots of Fire film theme, which allegedly plagiarised Stavros Logarides’s 1975 electronic instrumental tune “City of Violets”. In 2020 a legal battle over the introductory riff of Led Zeppelin’s “Stairway to Heaven”, alleged to have been copied from “Taurus” by the band Spirit, came to a conclusion after six years. All the cases were unsuccessful: none of these songs were found to have plagiarised the older ones.
It was the 2015 “Blurred Lines” case that “opened the floodgates” for music copyright claims, Bosher says. A Californian jury found Robin Thicke and Pharrell Williams guilty of plagiarising the “vibe” of Marvin Gaye’s 1977 song “Got to Give It Up” and they were ordered to pay $7.4m to Gaye’s children. It was argued that “Blurred Lines” evoked the same mood, with a similar rhythmic pattern and production choices.
The controversial outcome led to “a queue of people bringing these actions”, says Bosher. Most cases are settled out of court, which is typically cheaper, quicker and attracts less publicity. In 2018 Lana del Rey said that Radiohead were taking legal action against her for the similarity of her song “Get Free” to the band’s debut single “Creep” (Radiohead’s publishers claimed the two parties had merely been in discussion). Radiohead had themselves previously been sued by Albert Hammond and Mike Hazlewood of the Hollies for harmonic similarities between “Creep” and their song “The Air That I Breathe”.
There are many such chains of alleged plagiarism. In 2017 Sheeran gave TLC writing credits on “Shape of You” because of its similarity to the group’s 1999 track “No Scrubs”. Performance and broadcast royalty payments for Sheeran’s song have been paused while the court case with Sami Switch is going on, meaning the TLC writers aren’t receiving their share either.
If Sheeran is found guilty of plagiarism, it would be the most significant case of its kind in the UK.
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Tom Gray, a member of the Mercury Prize-winning band Gomez and chairman of the Ivors Academy, the UK’s professional association for music writers, suggests that the payment model of the streaming-dominated industry — “profoundly stacked in favour of a few people” — has led to more cases being brought. Gray is the founder of Broken Record, a campaign calling for the government to regulate streaming so that artists and songwriters, not just major record labels, receive a fairer share of profits. “Songwriters aren’t happy,” he says. “If you enter into that situation a blurring of copyright because of some interesting decisions that have set some unusual precedents, that’s bound to lead to more cases.”
Legal decisions regarding music copyright are often highly controversial. The law, Bosher explains, is “complex and vague”, and ultimately each case rests on a subjective response: is this song a copy of that one, or do they just sound alike?
There are two parts to the infringement test in court proceedings. The first is access: did the artist accused of plagiarism hear the original song before they wrote theirs? You can’t copy something you’ve never heard. You don’t, however, have to remember hearing it. In 1976 George Harrison was found to have “subconsciously plagiarised” “He’s So Fine”, performed by the New York group the Chiffons, with his hit “My Sweet Lord”. Harrison claimed he did not knowingly copy the song. “It doesn’t matter that it was by accident. It still counts as infringement,” Bosher explains.
The second part of the test is “substantial taking”: did the artist lift original parts of someone else’s song? Using the 12-bar blues, or a drum’n’bass rhythm, does not constitute copyright infringement because these ideas are generic. In court it is a musicologist’s job to make the case for or against copyright infringement by breaking down the relevant parts of a song and explaining musical similarities or differences. Much rests on their expertise, but it is something of a “rogue” role, Bosher explains. There is no standard method for a musicologist to communicate musical ideas to non-experts.
Jules O’Riordan, a music lawyer and DJ who performs as Judge Jules, points out that in the US copyright is a federal issue and a jury is given the final say, whereas in the UK such cases are decided by a judge. Here “the issue is ultimately a case of comparing experts’ notes and seeing which expert and which barrister’s opinion manages to sway the judgement of the one or more judges who are making the adjudication”. Music copyright infringement — much like musical taste — is a matter of personal interpretation.
How similar are the songs in these cases, really? Take the Katy Perry “Dark Horse” case. In 2014 the Christian hip-hop artist Flame, whose real name is Marcus Gray, filed a lawsuit claiming that Perry had copied an eight-note repeating pattern, or ostinato, from his 2008 song “Joyful Noise”. Listen to each of the patterns below.
These eight-note patterns, which form the underlying beats of each song, are similar. Both follow the same rhythm, with equal note lengths. “Joyful Noise” is just a little faster than “Dark Horse”. Both melodies start by repeating the same note four times. They both then move down a note, and from there they differ. In Perry’s song this second note is played twice, then the melody descends the scale for one note, and then moves several steps down for the eighth and final note. In Gray’s descending pattern, the second note is played three times, before moving down a step for the final note. While Perry’s song uses the same eight-note phrase throughout, Gray’s song consists of two slightly different patterns — every second eight-note phrase, the final note is quite a few steps lower.
Perry argued that she and her co-writers had never heard Gray’s song, but the jury nonetheless found that “Dark Horse” plagiarised “Joyful Noise”. In July 2019 Perry, her producer Dr Luke and Capitol Records were ordered to pay $2.78m to Gray and his co-writers.
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Perry appealed against the verdict, and won. In March this year a judge ruled that Gray had tried to claim an “improper monopoly” over a pattern simply made up of conventional “musical building blocks”. The disputed sequence was not original enough for it to be protected under copyright.
Might this argument be used in future cases? Listen to the chorus of “Oh Why” by Sami Switch:
And then to this part of Ed Sheeran’s “Shape of You”:
Again, the phrases are similar: both songs use the same lyrics, repeated. In “Oh Why”, Switch sings the phrase three times, the final beat punctuated just by “Oh”. His voice is layered in production. In the slightly faster “Shape of You”, Sheeran sings the full phrase four times, and his voice too is layered. The phrases occupy different positions in each of the songs: “Oh why” is a post-chorus or bridge in “Shape Of You” and, on the lyric website Genius, is in fact quoted as “Oh I”. In Switch’s song the phrase is the main refrain, giving the track its title.
Sheeran has denied ever hearing the earlier song, but there is also the question of whether Switch’s “Oh why” phrase will be deemed original enough to be protected by copyright.
The changing nature of the music industry — both how songs are written and how fans listen to them — has a part to play in the copyright boom. More than 60,000 songs are uploaded to Spotify every day. With more people releasing music than ever, the chance of artists feeling as though their intellectual property has been infringed is also higher.
“I think songs are written too fast, and I think it’s because nobody’s got any money,” says Tom Gray. “If you’re writing quickly, you don’t check your homework.”
Gray believes the algorithm-dominated model of platforms such as Spotify, which recommends similar-sounding songs to listeners, is also to blame. “So you’re better off producing more of the same,” he says, “and if you’re staying in a tighter frame of sonic signature, then you will start getting more of these cases of copyrighting the ‘vibe’. The algorithm flattens culture: it keeps bringing us back to the same thing. It feels like pop has not moved on much since 2008.”
What about legislation? Most experts agree with Gray that it’s not copyright law but the interpretation and application of it by the courts that needs to change. If it does not, the possibility for infringement could become “ridiculous”, he says. “Copyright isn’t there to stop ideas being used again and again. It’s there to lock in a very specific usage of an idea. The danger is, with overly strong application of copyright in the courts, you end up with the inability of people to use common ideas, and common ideas are part of creativity.”
And copyright is crucial for songwriters because it allows them to earn royalties, leading to, in Bosher’s words “more creation, more creativity and more culture”. There are increasing reports of rights holders asking musicologists to check a song for possible copyright infringement before it is released. “That’s a new thing,” Bosher says, and it suggests a growing fear around copyright charges. “That is worrying, and a sign that copyright’s scope is becoming too broad. It’s stifling creativity if you’re not allowing people to freely create without that fear.”
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