Ed Sheeran recently appeared live — in a London courtroom to give evidence in a copyright claim relating to a part of his song, The Shape of You.
The point of contention is the link between the verse and the chorus, but the artist Sami Switch has alleged that the main melody of his song, Oh why has been infringed. The lyrics are different “Oh I, oh I, oh I” and “Oh why, oh why, oh why”, but they share a similar combination of about six notes.
Where there’s a hit, there’s a writ, runs the old saying. And while the modern version of where there’s a hit, there’s a claim form is nowhere near as catchy, the sentiment is timeless.
The grand tradition of musicians suing each other for copyright infringement is as old as rock itself. Chuck Berry accused the Beach Boys of stealing Sweet Little Sixteen to make Surfin’ USA; The Kinks sued The Doors over Hello, I Love You; and who could forget — however hard they might try — Vanilla Ice’s appropriation of the bass line from Under Pressure by Queen and David Bowie.
Yet these music copyright cases seem to be more prevalent in recent years. Could it be that, just as musicians are often inspired by the work of those who have gone before them, so are their lawyers?
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In 2019 the EU’s highest court decided that taking and looping a sample from a Kraftwerk track that was just a few seconds long was a copyright infringement. While in the US, Pharrell Williams and Robin Thicke were ordered to pay Marvin Gaye’s family $5.3 million for infringing copyright in his 1977 hit cin Blurred Lines.
The Blurred Lines case was initiated by Williams and Thicke, who asked the court to grant a declaration of non-infringement — essentially a procedure that allows a person who is accused of infringement to go to court and have a judge rule that they did not infringe. Sheeran’s case began the same way, which has led to calls to prevent what are essentially strategic lawsuits given that they force the person who thinks they have been infringed to commit to the costs of litigation.
In the end, each case comes down to questions of fact: has there been actual copying — not just coincidental similarity — and if so, has an artist taken a “substantial part” of someone else’s work?
There is no set percentage test for the second point — it is more a question of whether the part that has been copied is significant, as well as original. That is often something only a court can decide, no matter how many naming and shaming clips might appear on YouTube.
Robert Lands is a partner at Howard Kennedy, a London law firm