The following op/ed comes from Simon Goodbody and Mark Krais, Partner and co-founding Partner at Bray & Krais Solicitors, the legal firm that represented Ed Sheeran in his recent copyright infringement battle in the UK. The case was brought against Sheeran by a British artist called Sami Chokri (aka Sami Switch), who claimed that Sheeeran ripped off his song Oh Why, which was released in 2015. The verdict was delivered in Sheeran’s favor in a UK High Court on Wednesday, April 6.
Proceedings began when PRS suspended the song’s royalty account following an infringement claim by songwriters, Sami Chokri and Ross O’Donoghue relating to their 2014 composition Oh Why.
Having never heard it, the Shape of You songwriters sought a declaration they had not infringed copyright and the release of PRS revenues.
Chokri and O’Donoghue counterclaimed, alleging that Sheeran, McDaid and Mac had consciously or subconsciously copied a short musical phrase from Oh Why and seeking damages or an account of Shape of You’s profits.
In evidence, McDaid referred to speculative claims in the US, noting a “culture” of “songs being dragged before juries” resulting in unfavourable judgments.
Although US cases set no precedent here, large claims are spilling into this jurisdiction as high-profile artists become targets for lesser-known songwriters.
US Rising Wave
Numerous US infringement cases have arisen since Robin Thicke and the co-writers of Blurred Lines were judged to have infringed copyright in Marvin Gaye’s hit Got to Give It Up and ordered to pay Gaye’s estate USD $7.3 million (where the court ruling cited the “groove” and “feel” as aspects of similarity or commonality, blurring the distinction between performance and compositional techniques).
Robert Plant and Jimmy Page had to prove that Stairway To Heaven did not infringe the copyright in the song Taurus, written by Randy Wolfe. Katy Perry also endured a lengthy battle relating to a six-note passage in her song Dark Horse, which Flame (Marcus Gray) alleged was copied from his composition Joyful Noise.
The Led Zeppelin duo were initially successful: a jury found that the two songs were ‘not intrinsically similar’. That verdict was overturned when the trial judge was found to have misdirected the jury by suggesting that ‘descending chromatic scales, arpeggios or short sequences of three notes’ were not protected by copyright and that they should have heard both songs. But a US appeals court reinstated the original ruling (and the US Supreme Court subsequently denied a petition to reopen the matter).
Meanwhile, Perry was ordered to pay Gray USD $2.78 million when a jury found that the contested six-note phrase in Dark Horse infringed his earlier work. But having stated that Gray was ‘trying to own basic building blocks of music, the alphabet of music that should be available to everyone’ Perry’s lawyers won on appeal. In March, a US judge overturned the initial ruling, stating that granting copyright protection over such material would amount to ‘allowing an improper monopoly over two-note pitch sequences or even the minor scale itself.’
Undeterred, two separate claims have been brought against Dua Lipa relating to her hit Levitating; the first by Artikal Sound System concerning their song Live Your Life and the second by songwriters L Russell Brown and Sandy Linze relating to two of their works.
Attempt to ride the wave in the UK?
In Smith v Dryden, a claim was brought last July against the writers and publishers of Rudimental’s hit Waiting All Night. The Claimant, Kelly-Marie Smith, alleged that the song’s chorus had been copied from her unreleased ballad, Can You Tell Me. The elements Smith claimed were copied amounted to the lyric line “tell me that you need me” and the 3-pitch phrase to which it is sung, meaning that her claim relied upon alleged copying of the literary and musical works within Rudimental’s composition.
Mr Justice Zacaroli noted in his judgment in Smith v Dryden that ‘while there are objective similarities between the choruses of both songs, there are differences which – in the context of a simple melody which spans only three different tones – are not insignificant’. He added that it was ‘plausible’ that two persons trying to write a hit song in the genre of Waiting All Night would conceive the lyric “tell me that you need me” and set it to music comparable to Can You Tell Me. Similarly, infringement in Sheeran v Chokri was claimed on the basis that a very short Shape of You passage used commonplace features like another short passage in Oh Why.
“It is hoped that the US appeal in Dark Horse and the UK court’s findings in Smith v Dryden and Sheeran v Chokri signal the end of a damaging, regressive culture of speculative claims over commonplace and, critically, much-loved musical elements.”
Simon Goodbody and Mark Krais, Bray & Krais Solicitors
The distinction between musical and lyrical works, as defined by the [UK’s] Copyright, Designs and Patents Act (CDPA) 1988, is crucial. The claim against Sheeran focussed solely on the musical work, ‘consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. Given the extent of alleged similarity, that amounted to a two-bar musical phrase repeated three times throughout Shape of You over the lyrics ‘Oh I, Oh I, Oh I, Oh I’, referred to as the “Oh I Post-Chorus”, which was alleged to reproduce a musical phrase sung to the words ‘Oh why, oh why, oh why, oh’. In isolation, the relevant phrase amounts to 15 seconds throughout Shape of You.
Expert musicologist Anthony Ricigliano noted that the Oh I Post-Chorus comprises the first four notes of “humanity’s favourite scale” – the minor pentatonic. Echoing the Smith v Dryden judgment, it was argued that reproduction of these notes in the same sequence as the scale is more likely to be coincidence than copying. The appeal judge’s caution not to unfairly restrict creativity by imposing improper protection over commonplace compositional elements in the Katy Perry/Dark Horse case and comments regarding the “basic building blocks of music” and “alphabet of music” resonated throughout Sheeran v Chokri.
Referring to similarities between the songs, Zacaroli J stressed in Sheeran v Chokri ‘that it is important to note that all of these features are, however, commonplace and their use in Shape can be readily explained by other matters.’ Accepting Ricigliano’s evidence, he explained that ‘the use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr Sheeran sought out inspiration from other songs to come up with it.’
He concluded that Chokri and the other defendants had ignored key differences between the compositions and ‘the fact that each element is a common building block in music of this and many other genres, and the use of the same or similar elements in other parts of Shape and in other Ed Sheeran songs.’
Infringement claims in both cases fell short on access: meaning it must be established that alleged infringers had access to the earlier work. In Smith v Dryden, any suggestions that the Waiting All Night writers had prior access to Can You Tell Me were ‘extremely weak’ and relied on ‘tenuous connections’. Failure to establish access was repeated in Sheeran v Chokri. Zacaroli J dismissed all the alleged routes of access by which Sheeran might have heard Oh Why.
UK copyright law imposes detailed tests for infringement claims. Their nuances surpass a jury’s opinion of two similar sounding recordings – a seemingly determinative factor in many US cases. Although the CDPA’s intricacies make few headlines, Smith v Dryden and Sheeran v Chokri identify the threshold facing prospective claimants.
Recent rulings may herald a turning of the tide. It is hoped that the US appeal in Dark Horse and the UK court’s findings in Smith v Dryden and Sheeran v Chokri signal the end of a damaging, regressive culture of speculative claims over commonplace and, critically, much-loved musical elements.Music Business Worldwide