RELATED KNOWLEDGE
Claims of plagiarism are common in the music industry. Usually, they are dealt with through out of court settlement negotiations. However, over the last few years there have been a considerable number of high-profile disputes that have brought these claims into the courtroom. These cases were essentially sparked by a US court’s finding that Pharrell Williams and Robin Thicke’s song “Blurred Lines” infringed copyright in Marvin Gaye’s song “Got To Give It Up.” The Court ordered damages of $7.3m be paid to the Estate of Marvin Gaye, sending shockwaves throughout the music industry with concern that the creativity of songwriters could be stifled by the threat of litigation. By contrast, later prominent infringement cases brought against Led Zeppelin (for “Stairway to Heaven”) and Katy Perry (for “Dark Horse”) have not been successful.
More recently in the United Kingdom, there was great interest in the music industry when Ed Sheeran felt that enough was enough and wanted to take a stand against “baseless claims” of plagiarism rather than settling the matter behind closed doors (Sheeran v Chokri [2022] EWHC 827 (Ch)).
The UK High Court found that Ed Sheeran “neither deliberately nor subconsciously copied” a 2015 song written by Sami Chokri and Ross O’Donoghue titled “Oh Why” when creating Sheeran’s 2017 hit “Shape of You”. The case is a win for popular musicians who increasingly find themselves the target of copyright infringement claims with respect to songs they have no recollection of ever having heard. This article examines the current state of play of copyright in pop music in Australia and the key findings from the Ed Sheeran case in the UK. How is popular music protected by copyright?
When it comes to music, what does copyright protect?
Copyright protects the expression of ideas. The key requirements for protection in Australia are that the copyright “work” is original and reduced to a material form. To be original, the work must come from the skill and labour of the author (ie. it cannot be copied from another work). To satisfy the material form requirement, the work must be recorded in some way. For instance, if you have an idea for a song but you merely sing it out loud, there is no copyright. Copyright is attached to that song once you record it in some way, such as writing it down or recording the music and lyrics.
There are a range of rights associated with music that are protected under the Copyright Act 1968 (Cth):
- First, if the music has lyrics, those lyrics will generally enjoy copyright protection as a "literary work", just like a book.
- Second, there is the "musical work" which comprises the notes of the song and its arrangement, which is separate from the lyrics and any particular recording of the song.
- Third, there is each individual "sound recording" of the song, which has its own protection.
Each of these elements of a song give rise to separate rights under the Act meaning that a copyright owner could pursue a potential infringer for all three elements or for each element separately.
Once copyright is established, owners of copyright in musical and literary works hold exclusive rights to their work. That is, they can (among other things) “reproduce the work in a material form” and “communicate the work to the public.” Copyright owners of sound recordings likewise have the exclusive right to “cause the recording to be heard in public” and to “communicate the recording to the public.”
If someone does anything that breaches the exclusive rights of a copyright owner (without consent or a valid defence), they could be found to have infringed the owner’s copyright.
How do Australian courts assess copyright infringement claims relating to popular music?
The two key issues which arise in these cases are as follows.
Causal link
In order to establish copyright infringement, it is necessary to establish that there is a causal link between the allegedly infringing material and the copyright work. In other words, the allegedly infringing material must have been derived from the copyright work in some way in order for there to have been an infringement, even if it occurred indirectly or subconsciously. If no regard was had to the original work or subject matter, there will be no infringement.
What about part of a song that only sounds like another song?
You can still infringe copyright if you:
- only use part of a song; or
- adopt in your music something that is not the same as, but sounds similar to, part of another song.
The copyright owner just needs to show (assuming the causal link described above exists) that you copied a "substantial part" of their copyright work. This is a complex legal issue that needs to be assessed on a case by case basis. Helpfully, however, the courts have given some useful guidance on this issue. The key principles are:
- The issue is primarily one of quality, not quantity – a reproduced part of a musical work may still be a "substantial part" of that work, and the reproduction amount to an infringement, even though the part that is reproduced is only a small proportion of the complete musical work.
- What is relevant is whether the part that is reproduced by the alleged infringement is "an essential air or melody" of the original work. This is to be determined objectively, in the sense of whether there is an aurally perceptible similarity between the two pieces of music.
- In a court case, the relevant similarity will be assessed by reference to a range of factors – including melody, key, tempo, harmony and structure. This will normally be determined by a court with assistance from experts (usually musicologists) engaged by each side to give their opinion on the alleged similarities and differences.
For example, in the Men At Work Case, the owner of copyright in the song "Kookaburra Sits In the Old Gum Tree" brought copyright infringement proceedings in respect of the popular Men At Work song "Down Under". There, the Court accepted that the relevant section of "Down Under" was "[a] bit like shining a different light" on the relevant melodic phrase of "Kookaburra Sits In the Old Gum Tree", and that Men At Work in their song "Down Under" had reproduced "an essential air or melody" of the "Kookaburra Sits In the Old Gum Tree" music.
Oh why was the shape of you an issue at all?
Ed Sheeran’s “Shape of You” was the first song to pass 3 billion streams on Spotify and has more than 5.6 billion views on YouTube, making it one of the most successful songs of the past decade. However, in 2018, Sami Chokri alleged that an eight-bar section of “Shape of You” (the Oh I phrase) was copied from the eight-bar chorus of his song “Oh Why” (the Oh Why Hook). In response, Sheeran sought a declaration of non-infringement of copyright.
Chokri claimed that Sheeran deliberately and consciously copied the Oh Why Hook. In doing so, he pointed to the alleged similarity between the works, Sheeran’s access to the “Oh Why” song prior to writing “Shape of You” and Sheeran’s alleged propensity to copy and conceal. He further claimed, in the alternative, that Sheeran subconsciously copied the Oh Why Hook (which can still amount to an infringement).
On 6 April 2022, the High Court found that Sheeran did not copy “Oh Why” and made a declaration to that effect. The judge noted that although there were similarities between the hooks, there were also significant differences. These differences included the diverging moods of the respective phrases, the subtle differences in tune and harmony, and the different responses and stresses placed on the "Oh Why" and "Oh I" phrases. This analysis of the musical elements, as well as the evidence of Sheeran’s writing process, signalled that the “Shape of You” hook originated from sources other than “Oh Why”. The court also dismissed claims that Sheeran may have heard “Oh Why” (either from mutual friends or on his own) as merely speculative.
Chokri relied on instances where Sheeran referenced the music of others in his writing as evidence pointing towards a propensity to copy from others. This included Sheeran crediting the writers of TLC’s hit No Scrubs for similarity to an earlier version of Shape, Matt Cardle’s Amazing due to similarity in the chorus of Sheeran’s Photograph and Shaggy’s It Wasn’t Me for unintentional copying while writing Strip That Down. However, the judge firmly dismissed this, noting that “the fact that someone is in the habit of openly recognising and crediting the work of others makes it less likely that they would set out to steal the creative work of others”.
Chokri also raised Sheeran’s earlier settlements, such as with R&B group TLC, as evidence that he copied other artists. However, the judge made it clear that a prior settlement reached between two parties (regardless of the size of settlement reached) is not indicative of conscious copying. Rather, it indicates an appreciation of risk of losing a case of copyright infringement and a desire to avoid large amounts of time and money going to trial – something which Sheeran was obviously prepared to do this time around.
Based on these findings, the judge held that there was a real commercial reason for making a declaration of non-infringement (both because of the reputational damage caused to Sheeran and his co-writers and the £2,200,000 in royalties that had been frozen by the Performing Rights Society).
What the Ed Sheeran court victory means for musicians and the music industry
By the time this case went to trial, Sheeran and his co-writers (McDaid and McCutcheon) had written the song “Shape of You” five years prior. In evidence, it was understandably difficult for the writers to remember, consistently and precisely, all aspects of their writing session. It is a useful lesson for musicians to document as much of their creative process and procedures as possible. This may include ensuring that copies of files and sound recordings are kept, emails are archived and any agreements with third parties are stored. Then, if a claim for infringement of copyright is brought some years later, it will hopefully be possible to substantiate where an idea originated from, and the process in which the idea translated into a piece of work such as a pop song.
And finally, it’s understandable that musicians often choose to confidentially settle these disputes before they get to court. Faced with the potential cost, inconvenience and reputational harm associated with defending infringement proceedings, this might still be the right approach in some cases (particularly where the musician might have taken “inspiration” a step too far). However, where musicians feel strongly about their position, Sheeran has shown (very effectively) that there is another way. He turned the tables on the hunter, turning him into the legal equivalent of a mashup. It will certainly be interesting to see whether other musicians follow Sheeran’s lead.