Why copyright lawsuits are ruining pop
EEd Sheeran’s been in the High Court passionately denying he nicked a hook from an obscure 2015 track
d Sheeran and Dua Lipa stand accused of ripping off other people’s songs. These are depicted as David versus Goliath battles, pitting small-time talents against entertainment giants. So why are my sympathies in these cases almost entirely on the side of Goliath?
Sheeran has been in the High Court quite passionately denying he nicked a hook for his 2017 multi-billion streaming hit Shape of You from an obscure 2015 track Oh My by a British rap-singer named Sami Switch, who has, at last count, fewer than 45,000 monthly listeners on Spotify.
Pop dynamo Dua Lipa, meanwhile, is the subject of two separate lawsuits over her 2020 global smash Levitating. Florida reggae band Artikal Sound System have accused her of replicating the backing of their 2017 song, Live Your Life, which was never a hit, and has had very little traction online.
And veteran songwriters L Russell Brown and Sandy Linzer have said Lipa has “duplicated” the melodies of two of their Latin-flavoured songs, Wiggle and Giggle All Night by Cory Daye (released in 1979) and Don Diablo by Miguel Bosé (a minor Latin hit in 1980).
You don’t need to be a musicologist to hear the similarities that have triggered these accusations. And given that music licensing body PRS for Music has held back £20million in publishing and performance royalties from Shape of You until the case is settled, you don’t need to be a lawyer to understand why plagiarised artists might want their day in court.
Presumably, judges and juries will decide these cases on their merits. But I question the musical ecosystem that has led to these cases in the first place, confirming the venerable musicbusiness adage: “Where there’s a hit, there’s a writ.”
In the case of Shape of You, it all centres on a brief but repeated melodic snippet in which Switch sings “Why oh why oh why oh why” and Sheeran sings “I oh I oh I oh”.
Sheeran’s defence (and I think it’s a good one) is that he had never heard of Switch, and therefore any similarity is entirely coincidental. Much has been made of the fact that he settled a multi-million pound lawsuit on his 2015 song Photograph, brought by the composers of an earlier song, Amazing, performed by X Factor winner Matt Cardle.
In court, Sheeran claimed to have been “bruised” by that experience. “Even though I felt that I’d done nothing wrong, we decided to settle the case because of the money and time it would take to fight it. However, that left me with a very bad feeling afterwards,” he admitted. “It made me feel like I did not want to play the song any more.”
That line really struck a chord with me. Lawsuits claiming part-ownership of big hits (because, let’s face it, nobody sues for a share of a flop) threaten the creative freedom needed to actually make music.
There are only 12 notes in a scale, and there are strongly established formats for chord sequences and song patterns. Songwriters are constantly mimicking, repeating and building on what other songwriters have done, sometimes consciously, often subconsciously. As that great rock ’n’ roll sage Keith Richards once said: “There’s only one song, and Adam and Eve wrote it; the rest is variation.”
Who wrote Greensleeves?
Who wrote St James Infirmary? The answers have been lost in the mists of time. And even if we could identify a single originator, it wouldn’t nail down the evolutionary process of folk and blues written and rewritten throughout history.
But with the era of recorded music, that process of influence and adaptation has become a copyright minefield. Chuck Berry adapted blues forms to write his rock’n’roll songs, the Beatles riffed on Chuck Berry to create a new pop template, and every songwriter since has been influenced by the Beatles – some more blatantly than others. Noel Gallagher and Oasis have made a whole career out of it.
In a sense, this is the very essence of pop music, a form that repeats itself and eats itself, with every new innovation in sound and rhythm becoming the basis for myriad other pop songs. And today, in the age of streaming, with more than 50 million songs on Spotify, it would seem a near impossibility for any new song not to remind a listener of something they have heard before. It is one of the reasons why song credits are getting so ridiculously expansive.
There are 11 songwriters credited on Mark Ronson and Bruno Mars’s 2014 hit Uptown Funk, including the whole of veteran disco outfit the Gap Band, whose publishers asserted similarity to their 1979 hit Oops Upside Your Head. Yet there were only three people in the room when the song was written and recorded in a joyous jam.
“There’s nothing we intentionally or unintentionally took from that song, but that was the settlement we were told to follow,” Ronson once told me. “Basically, anybody who has a hit is opened up to being sued. There’s only so many rhythmic notations, only so many chord sequences, only so many notes.”
Ronson warned of a future in which artists were, “so worried about being sued they censor themselves”.
Well, that future is here. So is it time to call an amnesty on songcraft? Might we even need to re-examine copyright laws to establish some fundamentals of songwriting that are essential building blocks available to every creator, and halt what appears to be a growing trend to sort out credits in the courtroom?
Otherwise, musicians are going to have to start heeding the wise advice of Tony Iommi of Black Sabbath: “Learn how to play two chords and then get yourself an attorney before learning the third.”