Ed Sheeran won the latest in a string of copyright infringement lawsuits against him in early April of 2022. This time, he and his legal team took a different tactic in dealing with the claim that Sheeran, co-writer John McDaid (of Snow Patrol), and co-producer Steven McCutchen lifted the melody of "Shape of You" from another song. This time, Sheeran & co. didn't settle the case out of court with a payment to the claimants.
“[C]laims like this are way too common now and [it has] 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. It's really damaging to the songwriting industry," Sheeran said in a video shared on social media. "There's only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify…and there's only 12 notes that are available.”
Lawsuits broadly alleging infringement of hit songwriters by the writers of less-popular songs are on the upswing, as are requests from established artists for credits and royalties. See Taylor Swift and Paramore vs. Olivia Rodrigo, the writers of T.L.C.'s "No Scrubs" vs. Ed Sheeran, Tom Petty vs. Sam Smith, Radiohead vs. Lana Del Rey, the Gap Band vs. everyone involved with "Uptown Funk," and the list goes on (and on and on).
For decades, injustice in copyright law often seems to come down to who has the most power and influence to get the law on their side. And, as Sheeran showed with his claims that he'll be filming all of his songwriting sessions from now on, who can prove that their idea was original and not influenced by any outside works.
Infringement Isn’t New
The annals of copyright law are littered with landmark cases, including the Rolling Stones taking 100% ownership of publishing on the Verve's "Bittersweet Symphony" in a dispute over how much of a section of strings, that the band didn't play or compose, could be used (and recently returning it). There's the case of John Fogerty vs. Fantasy, Inc., who owned the copyright to a song he wrote with Creedence Clearwater Revival, "Run Through the Jungle," and later sued him for infringing on their copyright with a new Fogerty solo song, "The Old Man Down the Road." A jury ultimately found there was no basis for the claim that "Old Man" was a derivative work, but not until Fogerty took the stand with his guitar to demonstrate the differences.
And, of course, there's the time George Harrison was found liable in a suit brought by the Chiffons for “subconsciously” lifting the harmonies of "He's So Fine" for "My Sweet Lord," a case that controversially hinged on copying a grace note that made the melody distinct. Or, as Charles Cronin describes it for the George Washington University law blog, "Harrison's use of this idiosyncratic musical device, along the lines of the court's reasoning, implicated him; it was akin to copying a mistake.”
How the Nuances of Copyright Law Influenced Infringement
Copyright law has felt more in flux to songwriters and copyright holders since 2015, when a lawsuit by Marvin Gaye’s estate against "Blurred Lines" writers Robin Thicke and Pharrell was successful, leading to a $5.3 million settlement and reversion of 50% of the song’s copyright to Gaye. This ruling sent a shiver through the songwriter community because the suit attempted to expand copyright law beyond the protection of arrangement, melody, and chords, with Gaye’s legal team asserting that Pharrell and Thicke recreated the feel and groove of Gaye’s original songs, not the melody or a chord progression. Commenting on the suit and its seemingly precedential finding, Pharrell stated that “It’s bad for music because we’ve had an understanding of what a song is, and now based on that one case, there’s a question of what a song is,” leaving songwriters unsure of what’s allowed and what isn’t.
Musicologist Robert Fink writes that this ruling blurs the lines (ahem) between copyrighting a musical idea, and copyrighting an actual piece of music - for example, a chord progression and how it is realized through "the actual notes, rhythms, and simultaneities of the songs in question." Fink points out that the jury may have been swayed by the testimony of expert musicologists who argued on behalf of the Gaye family that the song structures were similar enough to be infringing. He further posits that the jury may have wanted to dismantle the historically racist music industry, which specifically impacted Gaye as an artist, and elements of the law.
This example stands in opposition to the case of John Lennon vs. Morris Levy, who sued Lennon in 1973 as the owner of Chuck Berry's catalog. The Beatle wrote and recorded 1969's "Come Together" based on the musical structure, including a few of the same lyrics, as Berry's 1956 single, "Can't Catch Me." Lennon admitted that Berry's song inspired him. Paul McCartney told Rolling Stone he was also aware of the song's origin, so the pair worked on altering the bass line to change the sound, if not the song's structure. The case was settled out of court, although things got more complicated between Levy and Lennon afterward.
The Beach Boys also faced a Chuck Berry lawsuit for their 1963 single, "Surfin U.S.A.," which interpolates "Sweet Little Sixteen," a 1958 song by Berry. Brian Wilson described the song to the L.A. Times, saying, "I just took 'Sweet Little Sixteen' and rewrote it into something of our own." Other than the clear copyright violations of the written music in both cases, both of these incidents exemplify the racial biases informing song ownership in the early rock ‘n’ roll era. In the '60s, white artists frequently recreated works written by Black creatives and turned them into hits for white audiences, often without compensating the original writers.
Introducing Sampling to the Mix
Looking back to the “golden era of hip hop” in the '80s and '90s, samples were a hallmark of the genre, enabled by technology and turntable wizardry. The original songs were often obscure and thoroughly recontextualized, and were almost never cleared. Once sampling - and hip-hop itself - became more mainstream, artists faced steep penalties well after the fact. De La Soul, producer Prince Paul, and Tommy Boy Records were subject to a 1989 lawsuit brought by two members of the Turtles for using a sample of "You Showed Me" on their breakthrough album Three Feet High and Rising. They settled out of court, but the details were not publicly disclosed. However, the album is notoriously still unavailable on all streaming platforms because the current rightsholder, Warner Music, doesn't feel confident it would be able to clear all the samples used on the album. It cites the cost of clearances, especially those done after the fact, and the lack of clarity from the original recording on exactly what permissions are needed: i.e., exactly what samples were used.
While the case helped solidify legal best practices in the art of sampling, and clarified that the fair use doctrine does not apply when it comes to sampling, the law as it is written also cuts off creativity in songwriting and production - and now, many genres beyond hip-hop also rely heavily on samples. Artists are now limited to sampling works they can both find ownership for and afford to clear, which can restrict sample sources and frequency, a huge limitation for artists who use samples as a major part of their work.
What’s To Come?
Sheeran’s triumph in the context of the hundreds of Black artists and their works in hip-hop and other genres whose creative juices have and continue to be stymied by legal limitations is uncomfortable, especially within an industry that has historically exploited Black and other BIPOC musicians with unfair deals and contracts. For generations, white composers have manipulated copyright laws to get away with ripping off Black creators.
But with Sheeran and other powerful songwriters speaking up against often-frivolous copyright claims, perhaps the laws restricting samples and other recontextualizations that are so key to nearly every musical genre today will be reconsidered in such a way that compensates all rightsholders while enabling creativity and musical experimentation - which ultimately benefits listeners most of all.