Consultant Andrew Forbes and Associate Tom Ryan discuss the importance of the recent Ed Sheeran copyright ruling for the music industry and the impact.
Andrew and Tom’s article was published in Music Week, 25 April 2022, and can be found here.
Ed Sheeran recently won a High Court copyright battle over his 2017 hit Shape of You. Together with his co-songwriters, Johnny McDaid and Steve Mac, he faced an infringement claim by two other songwriters, Sami Chokri and Ross O’Donoghue, concerning their 2014 composition Oh Why. The judge ruled that Sheeran and his collaborators had “neither deliberately nor subconsciously copied” the earlier song.
In giving evidence, McDaid pointed to the US, noting that a “culture” of “songs being dragged before juries” was producing unfavourable judgments for songwriters. Following the US examples, such large claims are starting to feature in the UK as lesser-known songwriters target well-known artists.
Since Robin Thicke and the co-writers of Blurred Lines were judged to have infringed copyright in Marvin Gaye’s hit Got to Give It Up and ordered to pay his estate $7.3m, US claims have led the way. After years in the US courts, Led Zep veterans Robert Plant and Jimmy Page eventually proved that Stairway To Heaven did not infringe the copyright in the song Taurus, written by Randy Wolfe.
A similarly protracted battle was endured by Katy Perry whose song Dark Horse was alleged to have copied a phrase from Joyful Noise by Flame (Marcus Gray). A jury awarded Gray $2.78m. But in March, a US judge overturned the ruling, stating that granting copyright protection in this case would amount to “allowing an improper monopoly over two-note pitch sequences or even the minor scale itself”.
Two songwriters, Sean Hall and Nathan Butle, are suing Taylor Swift for alleged copyright infringement claiming that Shake It Off contains “substantial similarities” to their song Playas Gon’ Play. Swift now faces a jury trial. Meanwhile English singer-songwriter, Dua Lipa, is also facing two separate claims relating to her hit Levitating – from Artikal Sound System concerning their song Live Your Life and from the songwriting duo of L Russell Brown and Sandy Linze relating to two of their 1970s works.
More copyright cases of this type are now being heard in English courts. In Smith v Dryden, a claim was brought last year against the writers and publishers of Waiting All Night, a hit for the English band Rudimental. Kelly-Marie Smith alleged that the song’s chorus had copied her unreleased composition, Can You Tell Me, copying the lyric ‘tell me that you need me’ and the 3-pitch phrase which accompanies it.
In his judgment, Mr Justice Zacaroli commented that “while there are objective similarities between the choruses of both songs, there are differences which – in the context of a simple melody which spans only three different tones – are not insignificant”. He noted that it was ‘plausible’ that, in trying to write a hit song in the genre of Waiting All Night, two people would separately conceive the lyric ‘tell me that you need me’ and set it to music comparable to Can You Tell Me.
Legally, the distinction between musical and lyrical works is crucial. While the claim in Waiting All Night related to both music and lyrics, the claim against Sheeran focussed on the music only in a two-bar musical phrase repeated three times throughout Shape of You over the lyrics ‘Oh I, Oh I, Oh I, Oh I’. This “Oh I Post-Chorus” allegedly reproduced a musical phrase sung to the words ‘Oh why, oh why, oh why, oh’, amounting to just 15 seconds throughout Shape of You.
In evidence, expert musicologist Anthony Ricigliano noted that the phrase comprises the first four notes of the minor pentatonic, which he called “humanity’s favourite scale”. It was argued that reproducing these notes in the same sequence as the scale is more likely to be coincidental than copying. Accepting his evidence, the judge stated that “the use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr Sheeran sought out inspiration from other songs to come up with it”.
After being vindicated in court, Sheeran released a short video on social media about vexatious copyright litigation. He concluded: “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 is no basis for the claim. It’s really damaging to the songwriting industry”.
Under English copyright law, detailed tests apply to infringement claims and both Smith v Dryden and Sheeran v Chokri clearly identify the evidential bar facing prospective claimants – the Court has made it clear that claims based on short commonplace musical and lyrical phrases are likely to fail, particularly where there is scant evidence that a successful writer had access to a claimant’s work. Hopefully, these rulings represent a turning of the tide and will act as a deterrent to more speculative copyright claims being brought. But it is too early to tell, despite Sheeran’s conclusion: “Coincidences are bound to happen with 60,000 songs being released on Spotify every day” and there being “only 12 notes available”.