Singer-songwriter Ed Sheeran was recently held not to have infringed copyright in a case before a jury in New York. This follows a similar result in the UK case last year alleging copyright infringement of ‘Oh Why’ in his song, ‘Shape of You’. In this publication we discuss the development of copyright infringement claims involving major music artists.

This analysis was first published on Lexis+® UK on 26 June 2023.

What is behind the apparent increase in copyright infringement claims involving major music artists in recent years?

There have been a number of claims of music copyright infringement against high profile artists in recent years, including Robin Thicke and Pharrell Williams, Katy Perry, Miley Cyrus and Ed Sheeran. There is a huge incentive to bring claims against big name artists, since the damages can be substantial if the case is won, or a significant financial settlement may be leveraged pre-trial. In 2015, Robin Thicke and Pharrell Williams had to pay Marvin Gaye’s estate over US$7m in relation to their song ‘Blurred Lines’. Ed Sheeran settled a US claim against him in 2017, in relation to his song ‘Photograph’, for over US$5m and Katy Perry was ordered to pay over US$2.8m in damages in 2019 in relation to ‘Dark Horse’ before this award was subsequently overturned. Since then, claims appear to have followed fast—Ed Sheeran was sued in the UK and the US in relation to two further songs, ‘Shape of You’ and ‘Thinking Out Loud’ (although both these claims ultimately failed).

In addition to substantial damages, there are also aspects of the US judgments in these cases which may have emboldened claimants. In both the US and the UK, to prove infringement, it is necessary to show that the defendant had ‘access’ to the copyright work. With the advent of music streaming and availability of music on social media, it has become an attractive argument for claimants to say that it is sufficient to prove that a defendant had access, if the song had a large number of views on YouTube or Spotify. In the Katy Perry ‘Dark Horse’ claim (Gray v Perry, 2019 U.S. Dist. LEXIS 113807), for example, rather than putting forward direct evidence of copying, the claimants focused on circumstantial evidence that Katy Perry must have heard Gray’s song because it had 600,000 views on YouTube. The assessment of copying was then limited to whether or not the ostinatos in both songs were substantially similar.

Further, after the heirs of Marvin Gaye succeeded in their copyright claim against Robin Thicke and Pharrell Williams (Williams v Gaye, 885 F.3d 1150), in relation to the song ‘Blurred Lines’, in 2015, the scope of US copyright protection for songs was seen by many to have effectively been extended to the ‘feel’ or ‘style’ of a song, which had not previously been recognised for protection. The dissenting judge in the appeal said that ‘the Gayes had been allowed to copyright a musical “style” in the absence of any objective similarity between the two songs at issue’. The combination of high stakes and an apparent broadening of copyright protection for songs may have driven more of these kinds of claims against big name artists. The tide may be turning now, however, after Katy Perry succeeded in overturning the damages award against her in relation to ‘Dark Horse’ (Gray v Hudson, 28 F. 4th 87 (USCA)) and Ed Sheeran successfully defended the claims against him in relation to ‘Shape of You’ (Sheeran and others v Chokri and others [2022] All ER (D) 48 (Apr) [2022] EWHC 827 (Ch) and most recently ‘Thinking Out Loud’ (Griffin v Sheeran, 351 F. Supp. 3d 492).

Are any changes to copyright protection proposed at a national or international level to address the issue of lengthy and increasingly frequent litigation in the music industry?

While we are not aware of any US, UK or EU proposals to amend copyright legislation to address the issue of lengthy and frequent litigation in the music industry, the EU Digital Single Market Directive included an obligation on EU Member States to give authors and performers a right to terminate a licence or rights assignment where their work has not been exploited, which should limit the risk of disputes/lengthy negotiations resulting from the authors'/performers' wishing to recover part of their catalogue. Otherwise, significant copyright disputes remain time-consuming and expensive to litigate, given that they are highly fact intensive, often involve multiple witnesses of fact and potentially industry experts to forensically comment upon the origination of the track in question. In the UK, there is an established practice, as a matter of case management, to require a claimant to limit its claim to be heard to the best five or so points of similarity on the facts, rather than allowing all of the points to be subject to cross-examination and submission at the trial itself. This is a helpful move, as well as the court’s reminder to parties that these disputes may be resolved through mediation, to avoid the cost of protracted litigation.

In the meantime, what practical steps can creators take to insulate themselves from accusations of copyright infringement and protect their rights in original songs?

In Sheeran v Chokri, with the guidance of expert musicologists, the court considered the similarities and differences between Ed Sheeran and Sam Chokri's songs by reference to the songs' technical features. The significance of any similarities as an indication of the likelihood of copying was dependent on:

• the extent of the similarities and differences

• the possible sources for the allegedly infringing section

• the writing process of the allegedly infringing section, according to Ed Sheeran's account and contemporaneous evidence

The more evidence a creator has of the writing process and the sources for a song, the easier that it will be to evidence the fact that a song is original and has not been copied. For example, after he settled the claim against him in relation to his song, ‘Photograph’, in 2017, Ed Sheeran reportedly started filming all his recording studio sessions, to support his evidence of the music creation process. In fact, this recorded evidence helped Sheeran to obtain the declaration of non-infringement in relation to Shape of You, because it allowed the judge to piece together the precise details of the writing session and the evolution of the song, ‘Shape of You’, which had happened several years earlier (and which Sheeran would otherwise have struggled to remember). After a forensic analysis of the process, the judge was satisfied that Ed Sheeran had not, either consciously or subconsciously, copied Chokri's song in creating ‘Shape of You’. As a result, the judge was prepared to grant the declaration of non-infringement.

Outside of the allegations of plagiarism, music artists (and their record studios) have looked increasingly to register trade marks for the name and image of the artist, as well as key track names or lyrics, as a way of more readily enforcing against individuals seeking to produce sound-a-like songs or recordings, such as Taylor Swift applying to register the lyric ‘This Sick Beat’.

However, it is clear that in the near term, we are likely to continue to see large copyright complaints from songwriters or co-contributors against artists and studios, given the value of music works over their long period of protection and also the revival of tracks by groups reviving their most popular tracks through live tours and music streaming services.

This analysis was first published on Lexis+® UK on 26 June 2023 and can be found here (subscription required).