Landmark case blurred lines between inspiration and infringement
When Grammy-winning singer Ed Sheeran emerged victorious from a courtroom after winning a copyright lawsuit this year, he wasn’t in the mood to celebrate.
Instead of boasting after he and his co-writers defended themselves against claims they had copied part of a song by musician Sami Switch into the 2017 hit Shape of You, Sheeran spoke for artists worldwide when he called out a cultural shift that’s emerged in recent years.
“Whilst 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 with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim,” Sheeran said. “It’s really damaging to the songwriting industry.”
Other high-profile performers, including Katy Perry and Donald Glover, whose stage name is Childish Gambino, have been accused of copying another artist’s work in recent years, but everything changed, experts say, with the 2015 lawsuit against Pharrell Williams and Robin Thicke over their appropriately named hit Blurred Lines.
“I think that case really blurred the line between what is permissible and what is not,” said Sandy Wilbur, a forensic musicologist and composer.
In the 2015 lawsuit, the family of Marvin Gaye argued that Thicke and Williams had infringed on Gaye’s 1977 song Got to Give It Up, winning nearly US$7.4 million after the jury found the Blurred Lines writers guilty of copyright infringement.
Several of the songs’ elements were different but both songs were similar in “feel”, Wilbur said.
“I think that it was extremely controversial because they were not two consecutive notes that were the same. The melodies, the harmonies, the lyrics, the bass line, everything was different. So, what was left was the feel or the groove,” said Wilbur, who testified in the landmark case.
“This was, in my opinion, a case of inspiration as opposed to infringement.”
During the trial, Williams noted the role Gaye’s music played in his youth, but denied using any of Gaye’s music while creating the song in question. Williams also criticised the verdict, warning the precedent this would set for future artists.
“While we respect the judicial process, we are extremely disappointed in the ruling made today, which sets a horrible precedent for music and creativity going forward,” Williams’ spokeswoman at the time of the case, Amanda Silverman, said.
Legal experts also came to see the 2015 case as a high-water mark of what can be considered copyright infringement, according to Zachary Elsea, a lawyer at the California entertainment and intellectual property law firm Kinsella Weitzman Iser Kump Holley.
While the 2015 landmark case blurred the lines between what can and cannot be considered copyright infringement, it also opened the door for increasing amounts of infringement allegations against songwriters, Wilbur said.
“It’s very distracting. It’s very upsetting, and it really can kill a creative spark in a person for a long time because these things tend to take a very long time to get resolved,” Wilbur said.
“There have been a lot of claims, and particularly of popular hit songs.”
A Christian rapper was awarded US$2.78 million in 2019 after jurors determined that Perry stole elements of Marcus Gray’s 2009 song Joyful Noise for Perry’s hit Dark Horse.
But a United States federal judge reversed the verdict the following year, saying the disputed section of Joyful Noise was not distinctive enough to be protected by copyright laws.
“It is undisputed in this case, even viewing the evidence in the light most favourable to plaintiffs, that the signature elements of the eight-note ostinato [phrase] in Joyful Noise is not a particularly unique or rare combination,” US District Judge Christina A. Snyder wrote in her 2020 decision.
Florida rapper Emelike Nwosuocha, who goes by Kidd Wes, filled a lawsuit against Glover and his Grammy-awardingwinning song This is America last May, alleging that the 2018 song copied Nwosuocha’s 2016 song
Made in America.
“The substantial similarities between both songs include, but are not limited to, nearly identical unique rhythmic, lyrical, and thematic compositional and performance content contained in the chorus – or “hook” – sections that are the centrepieces of both songs,” the lawsuit filed in New York last year stated. The case is pending.
More recently, Grammywinning artist Dua Lipa was hit with two lawsuits for her hit song
Levitating. Songwriters L. Russell Brown and Sandy Linzer alleged that the 26-year-old artist copied both their 1979 song Wiggle and Giggle All Night and 1980 song
Don Diablo in her hit. Reggae band Artikal Sound System also claim copyright infringement for their 2017 song Live Your Life.