“Thinking Out Loud” – Artistry Works, looking at Ed Sheeran’s success in defeating copyright infringement claim

Earlier this month, and for a second time yesterday, a New York jury ruled that Ed Sheeran was not liable for copyright infringement of Marvin Gaye’s 1973 hit, ‘Let’s Get It On’.

The claim brought by the company owning the rights to “Let’s Get It On” pleaded that the British singer-songwriter had lifted a four-chord sequence from Gaye’s sheet music registered with the United States Patent and Trademark Office, and used it to create one of his biggest songs to date, ‘Thinking Out Loud’[1].

The case was filed in the United States, specifically the State of New York. This is significant because the laws surrounding infringement can vary jurisdictionally (country-to-country). However, regardless of jurisdiction, the emphasis in most proceedings will be focused on whether there has been a substantial similarity between two pieces of work and whether the same amounts to an infringement of the exclusive rights bestowed upon the original creator[2]. The most likely remedy, where this is evidenced, will see a percentage of the infringer’s profits (plus, damages and costs) being awarded to the owner.

Click here or Below for a video comparing the differences between the two hits. To the untrained ear the similarities between the songs are clear. But would this be enough to give rise to a finding of copyright infringement? Infact this question is very significant particularly for a case in the United States because the case was heard before a jury. Musicologist, Mr Joe Bennett from Boston’s Berklee College of Music, highlights the problem with the US legal system with respect to copyright cases surrounding artistry works:

“Jurors are a problem in the US legal system because they can be manipulated,” … “Most jurors have never written a song before and cannot tell the difference necessarily between a reusable building block of music and a copyright protected unique element,” said Bennett. “In other countries, experts, lawyers and a judge handle the matter in court, but likely untrained ears will draw the line between influence and infringement,” he explained.

“A simple chord progression that you find in basic books about music theory becomes owned by the Gaye/Townsend estates? And every time you wanted to play a song that went — [for example] C, E minor, F, and G as your four chords — you couldn’t do it without paying a royalty to Marvin Gaye? It would be a very strange world to live in.”

Take a listen to see if you think the two songs are similar:

Sheeran found himself in the mix (pardon the pun) of another copyright dispute in the High Court of England and Wales back in April 2022 (Sheeran v Chokri [2022] EWCH 827 (Ch)[3]). This time Sheeran was the Claimant in an effort to ‘clear his name’ after the Defendant stated that Sheeran had stolen the post chorus ‘hook’ in his hit song ‘Shape of You’[4].

These cases are very imporant for the music industry and current singer-songwriters will be happy with the result. If Ed Sheeran had lost the case, this would have likely resulted in more claims being brought by older artists and song rights holders against more modern songs and more claims of infringement being made. Joe Bennett, making his point on where lines are to be drawn (and to highlight the impact had Ed Sheeran lost) stated: “If my favourite artist uses a cowbell and I use one too, can you copyright the cowbell?”.

Copyright Controversy relating to AI-powered music software

Often songs being released today are written by AI-generated software. The decision in the Ed Sheeran case is important for this too. There is currently copyright controversy surrounding the viral song “Heart on my Sleeve” which has been said emulates artists Drake and the Weekend.

This prompted Pop-electronic artist Grimes, in protest to copyright rules in music, reportedly saying, “Feel free to take advantage of my IP!” and uploading her voice to the AI-powered software Elf.Tech that generates her voice for creative use in exchange for a royalty split.

The impact of Ai and the controvesy from cases like Ed Sheeran’s are likely to have a revolutionary impact on the music industry and how royalties are distributed and paid and may well be another “Napster” moment for the music industry.

So, what is the law with regards to Copyright in the UK?

When considering Copyright law in the UK, it is important to note that it differs from that of the US owing to its territorial nature; however for the purpose of this review, it is well worth seeing what the UK law deems protectable and what is necessary to prove infringement and how that can impact a case like Ed Sheeran’s. It is regulated by the Copyright, Designs and Patents Act 1988 (“CPDA”).

The following categories of works are protected under UK copyright law:

• Copyright does not subsist in literary, dramatic or musical works unless and until the work is recorded in some way, “in writing or otherwise”. (section 3(2), CDPA). This is known as “Fixation”. It is not relevant whether the work is recorded by or with the permission of the author (section 3(3), CDPA). Relevant to the Ed Sheeran case, there was a comparison between the physical sheet music (and given Marvin Gaye recorded his song in 1973, there was no argument over the date of its creation).
• Original artistic works (section 1(1)(a), CDPA).
• Sound recordings, films or broadcasts (section 1(1)(b), CDPA).
• The typographical arrangements of published editions (section 1(1)(c), CDPA).

The meaning of each category of work is further defined in sections 3 to 8 of the CDPA.

Under the approach traditionally taken in the UK, originality means that the author must have created the work through their own skill, judgment and individual effort and that it is not copied from other works (Ascot Jockey Club Ltd v Simons [1968] 64 WWR 411).

Therefore, in order to qualify for copyright protection, the creative output must be:

• Classified as substantial work;
• Recorded in ‘permanent’ form; and,
• Be original[5].

This means that even if a piece of work is unique, it can still be considered an infringement if the Court considers that a substantial part of another creators work has been ‘copied’.

Forms of ‘Copying’

Copying can take many forms including:

• Reproducing a work in print, digital or other forms;
• Creating a derivative work that is based on the original work;
• Performing the work in public without the permission of the copyright owner; and
• Displaying the work in public without the permission of the copyright owner.

Copyright infringement requires there to be a ‘substantial’ part of the original work to be used without the owner’s permission, with a distinction between infringements; primary[14] and secondary[15]. However, law is never easy and to make things harder, there is no defined term in common law that determines what is considered ‘substantive’, the Courts have to rely on a subjective qualitative test to determine this[16]. Further to this, the law on copyright is also still evolving, with a recent ruling by Mr Justice Edwin Johnson in April 2022[17] lowering the threshold, insofar that even lifting a phrase from a copyrighted piece of work can be considered an infringement. For further context, the facts relative to this case, concerned a 50 word translation in a published book.

How to protect your copyright?

Ed Sheeran’s cases have evidenced the importance of protecting your intellectual property, especially in light of the changing landscape of Copyright at current.

In the UK, a piece of work will automatically (contradicting to US law, whereby a copyright piece must be registered) qualify for copyright protection if:

1. It meets the criteria bullet-pointed above,
2. The author is a qualified person e.g. a natural entity or corporate entity, and
3. The work was published in the UK or in a state party to a relevant convention e.g. Berne Convention.

Where the above is satisfied, the copyright protection subsists for the term set out by law. For example, where a musical work has copyright protection, this lasts for the life of the author plus 70 years from their death[13].

What is key is the originality and fixation. There are a few possible ways to prove this, such as through evidence of first use or first creation.

If you have any questions about protecting your copyright, your Intellectual Property, or if you have been accused of infringing somebody elses copyright, or you are concerned that somebody else is infringing yours, please do not hesitate to get in touch with us for further advice.