Copyright in Music? Under-enforced until… well, now!
It’s widely known that copyright is an under-enforced IP right. This is the same when it comes to copyright in music.
But every now and then you hear a story which really hits home the power of copyright protection.
The latest example involved national treasure Ed Sheeran (and his legal team) settling a dispute over the originality of his song “Photograph”. Songwriters Thomas Leonard and Martin Harrington accused Sheeran of slavishly reproducing “Amazing” – a song they had written for X-factor winner Matt Cardle in 2012.
Their claim was that Sheeran (alongside writing partner Johnny McDaid from Snow Patrol) had copied the 2012 song to a “breathtaking scale”. Upon listening, the similarities are frankly undeniable.
When this happens, musicologists are often called in to compare the material in detail and substantiate the claim. In this case, Dr. Bennett from Berklee College characterised the case as “hard to dispute” because of the two songs’ striking similarity. Notably; copyright in music is enforceable even if it was not a deliberate attempt to reproduce the song. Simply put: accidental copying is still… copying!
Copyright in music: 3 elements of a case
In a copyright in music claim, three aspects needed to be proven for infringement to have occurred. 1) The two pieces of music must share a high degree of similarity that is indicative of copying; 2) that the earlier piece of music was itself an original composition (itself not copied from somewhere); and, 3) that the alleged infringers had access to the alleged infringed song (basically, whether it’s likely they would have heard it.) In this case; all were likely to be proven if the trial went through; leading to the decision to settle the case.
This allows for a certain degree of coincidence to be classified as not infringement. For example, if the artist had created a, more-or-less, identical copy of a song (but could prove that they had never heard it before) this could be successfully argued as non-infringing. Ultimately for copyright infringement to occur – copying has to be possible. You can’t copy music you haven’t already heard; or that isn’t actually that similar; or is a copy itself.
Clearly when it comes to popular artists like Ed Sheeran; music is big business, and a writing credit on a hit song can result in a very reasonable royalty indeed! This case was settled before judgement to the tune of $20million for the claimants – which goes to show just how much a catchy song can really be worth.
This was one of many examples concerning copyright in music recently. Another prominent example was Robin Thicke and Pharrell being sued for “Blurred Lines” by Marvin Gaye’s estate (who have been very actively protecting his musical legacy in recent years).
Copyright or copy wrong: know your stuff
Copyright comes into existence the moment that an original creative work is made; and is an unregistered right (in the UK, at least). This might be why copyright is less litigated than other IP rights. Sometimes however, it can clearly be incredibly valuable to protect.
Our top tip for creatives looking to protect their work? Keep an ongoing and dated record of everything you create, any modifications you make to these creative works, and anything you do with them (e.g. when and who you license them to). Also it can be useful to regularly search for would-be infringement and create records when it does occur (keeping track of the potential commercial gain being made from your work). Both will be incredibly handy for your solicitors should significant infringing activity occur.
Because you never know – your creativity might be at the heart of the next big case!
For more info, or to speak to our award-winning intellectual property solicitors, call:
0113 237 9900