Words by Law City Student Ambassador, Maria Tafadzwa Mudenda
It is not uncommon to hear about copyright infringement allegations in the music industry. Several artists take inspiration from older songs, which is not a problem if they obtain relevant permission.
Ed Sheeran and two of his co-writers were recently involved in a legal dispute with two songwriters Sami Chroki and Ross O’Donoghue. Chroki and O’Donoghue alleged that the smash hit "Shape of You" (2017) infringed particular lines and phrases of their song "Oh Why" (2015).
However, Ed Sheeran and his co-writers denied that this was the case, claiming that they did not know Sami at the time, nor had they heard "Oh Why" before writing "Shape of You".
Interestingly, this is not the first time Ed Sheeran has faced copyright lawsuits. Only a few years ago, he settled a $16 million lawsuit following claims that his popular song, Photograph was a “note for note” copy of artist Matt Cardle’s song. This case was decided in the United States where he paid over $5million.
On Wednesday 6th April 2022 Ed Sheeran won the High Court copyright trial against Chroki and O’Donoghue when it was held that he “neither deliberately nor subconsciously” copied a hook from the song when writing the ‘Oh I’ phrase for Shape of You.
What is a Copyright?
A Copyright is a form of intellectual property law that gives owners of original literary, artistic, dramatic, or musical work, the exclusive right to control the use and dissemination of their work.
These works include photographs, movies, sound recordings, computer programs, musical compositions, books, and poems to name a few. It is all in the name, Copyright simply prevents others from copying the creations of its owner.
This protection is found under Section 1 of the Copyright, Designs and Patents Act 1988. In the UK, creative works automatically obtain copyright protection without the need to register them first. Nonetheless, copyright owners may take adequate steps to enhance the protections.
To acquire copyright protection owners must show two things.
For fixation to be achieved the creative work must exist in some ‘permanent form’ before it can be protected under copyright law, this protection will belong to whoever achieves fixation first.
For originality, the creator must show that they have expended reasonable amounts of effort, labour, judgment and or skills to prove the originality requirement.
Does Copyright law successfully protect the intellectual property of creators?
As the settlement between Ed Sheeran and Matt Cradle case illustrates, copyright provisions are a powerful way to protect works against illegal use or theft.
Similarly, in another music industry case, Marvin Gaye’s estate was able to seek protection against artist Robin Thicke when a copyright infringement case found that the artist had stolen elements of Gaye’s tracks.
Nevertheless, copyright law does not currently afford creators sufficient protection. The threshold requirement for originality, although relatively low, is not covered by any legislation; there is no set definition, and determining whether originality has been achieved is a matter of fact, one which is decided on a case-by-case basis.
It is debatable whether the tests for fixation and originality have made it easier for creators that have copied work to resist copyright lawsuits. Perhaps there is a need for further clarification by courts and a need to refine this area of intellectual property law to ensure creators are properly protected.
With that being said, Ed Sheeran makes a good argument stating:
"While we're obviously happy with the result, I feel like claims like this are way too common now, and have become a culture where a claim is made where the idea is settlement will be cheaper than taking it to court — even if there's no base for the claim. There's only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That's 22 million songs a year, and there are only 12 notes that are available."
Perhaps making "originality" objective may open the floodgates for opportunists who know settlement is sometimes the more affordable option.