News broke last week that pop star Ed Sheeran is being sued by California songwriter duo Martin Harrington and Tom Leonard. The suit relates to Sheeran’s songPhotograph which has sold more than 3.5 million copies and has more than 206 million plays on YouTube. The duo claim that Photograph has a nearly identical chorus to their 2012 song Amazing – with 39 identical notes “meaning the notes are identical in pitch, rhythmic duration, and placement in the measure”. According to the lawsuit, the “two songs also utilise similar overall structures, melodic rhythms and harmonies”.
The suit against Sheeran was filed by lawyer Richard Busch, and claims USD$20 million in damages. Last year, Busch helped Marvin Gaye’s heirs obtain a $7.4m payment from other pop stars Robin Thicke and Pharrell Williams over their song Blurred Lines.
Three other recent cases involving ¼ second, 2 second and 8 second samples demonstrate that copyright claims can be based on allegations of copying of even shorter excerpts.
Madonna: a 1/4 second horn sound
A US appeals court has confirmed that Madonna did not infringe copyright by use of a brief horn sample on her 1990 hit Vogue, avoiding millions of dollars in damages for the pop superstar. The horn sound was a quarter-second long, lifted from a 1982 instrumental track called Love Break. Two of the three 9th US Circuit Court of Appeals Judges held that the sample qualified as “de minimis” meaning it was so small that it didn’t matter from a legal point of view. The dissenting Judge Barry Silverman said even a small sample of music, used without a license should be a copyright violation, "In any other context, this would be called theft".
Kraftwerk: a 2 second drum sequence
Meanwhile, the German Constitutional Court (Germany’s highest court) has ruled in favour of a hip-hop artist who used a two-second sample of music from the pioneering electro-pop band Kraftwerk. The dispute was over a short drum sequence from the band’s 1977 song Metal on Metal which was looped in Sabrina Setlur’s 4 song. The Court decided that "artistic freedom" outweighed the impact on Kraftwerk. The Court said that to find that this was infringement would be to "practically exclude the creation of pieces of music in a particular style".
Cricket: 8 second highlights
Finally, in the UK, England And Wales Cricket Board Ltd v Tixdaq Ltd considered the copyright in video clips from cricket broadcasts, each eight seconds long. The defendants operate the site “Fanatix”, where users upload sports news and commentary videos. Some uploads were alleged to breach the plaintiffs’ copyright. Tixdaq defended the claim on the basis of fair dealing for reporting and news coverage. Arnold J determined that while not any part of a broadcast would amount to an infringement, it was a matter of substantiality. Where the clips used were “highlights”, for example, there would be a more substantiality in the work. He held that the clips would not fall under the fair dealing for reporting defence, but did not conclude on the intermediary liability issue.
The recent cases may be a reminder of the 2010 decision in Australia against Men at Work over the Kookaburra flute riff. Although that riff forms only a few seconds of Men at Work’s song, Down Under, it was held to be a substantial part of Kookaburra being two of only four bars in total. As Justice Jacobson noted: "The copied features must be a substantial part of the copyright work, but they need not be a substantial part of the infringing work”. The recent decisions would seem to be consistent with the Kookaburra decision and highlight the importance of the part of the copyright work that is taken. If that part is an insubstantial part of the whole then there should be no infringement.
The Photograph case looks to be a "small bump" in the road for Grammy-winning Sheeran, we will keep you updated of progress.