Flanked! Two Ed Sheeran songs now face copyright infringement actions. One alleges Sheeran’s “Photograph” copied a song called “Amazing” written for X Factor winner Matt Cardle. Richard Busch—also counsel for the Marvin Gaye estate in the “Blurred Lines” case—filed in June on behalf of “Amazing”’s copyright owner, HaloSongs, Inc. Another, filed in August on behalf of the family of Ed Townsend, Marvin Gaye’s “Let’s Get it On” co-writer, alleges Sheeran’s “Thinking Out Loud” copies the Gaye classic.
It Takes Two
As my post on the “Stairway to Heaven” lawsuit discussed, the American test for copyright infringement is not markedly different from our Canadian one. A plaintiff must prove: (1) they own the copyright they seek to enforce; and, (2) infringement—that the defendant copied protected elements of the plaintiff's work. Usually in such musical infringement cases which lack direct evidence of verbatim copying (see Three Boys Music Corp v Bolton at 481), proof of infringement involves evidence that:
- the defendant had access to the plaintiff’s work; and
- the impugned work copied a “substantial part” of the plaintiff’s work.
Together, these two lawsuits are a case study in differentiating the appearance of strong and weak music infringement claims.
Amazing v Photograph
Forget the ad hominem suggestion that the “Amazing” lawyers are “letting it ride”, trying their success with another Gaye hit against another popular artist. The thorough infringement complaint against Sheeran’s “Photograph” appears to establish a prima facie case, detailing considerable evidence of substantial similarity (see [86]-[106]). Also, its claim of access does not rest on sheer public availability, but emphasizes the wide dissemination of “Amazing” in the United Kingdom. Accordingly, it may be harder to establish an independent creation defense for UK residents Sheeran and co-writer Johnny McDaid.
However, the complaint is already facing criticism for being overcomplicated, in the form of motions to dismiss from two of the eleven named-defendants, along with this quote from Sheeran’s lawyers:
"Defying the most fundamental pleading requirement of providing short, concise and plain statements, the First Amended Complaint consists of 44 sprawling pages of prolix, repetitive, argumentative and scandalous allegations, made mostly on 'information and belief […] [i]t makes sweeping, generalized allegations — in 156 paragraphs, some of which go on for pages and contain upwards of 25 or 30 different sentences — against eleven distinct Defendants."
Trying to dismiss the claim on grounds that the pleadings fail to meet Rule 8 of the Federal Rules of Civil Procedure may be prudent. The songs’ choruses may be as “strikingly similar” as the claim advocates, sharing a nearly identical (albeit common) I-V-VI-IV chord progression and 64 percent of the melody’s rhythm and pitch (see [96] & [104]). Then again, the longwinded claim includes comparisons of the similar order of their verse-bridge-chorus pop structures (see [91]) and the percentage of time the respective choruses comprise ([see 93]). These comparisons are as trite as comparing two paintings on the basis that both used a canvas. “Overcomplicated” is not a far-fetched description.
Let’s Get it On v Thinking Out Loud
In contrast, the complaint that Sheeran’s “Thinking Out Loud” substantially infringes “Let’s Get It On”—claiming that it copies harmonic progressions and melodic and rhythmic elements (see ([36]-[37])—looks unsupported.
Nearly all music contains harmony, melody, and rhythm; As important a question in infringement as whether copying occurred—which the plaintiffs claim—is, if so, what was copied and how much. On a cursory listen, it indeed sounds like Sheeran’s song has utilized a similar set of chord changes, but that is all. Without more evidence, the substantial similarity claim seems too scant for a prima facie case. As emphasized in my prior infringement pieces, chord progressions alone are as non-protectable in music as colour palettes in painting. There should either be either an overwhelming quantity of unique chordal progression copying or there must be combination of further elements like melody and rhythm to comprise substantial similarity (see Swirsky v Carey at 848). Otherwise, we risk creating an absurd environment where entire genres of music cease on inception, countering a chief objective of copyright to promote the creation of new works.
Meanwhile, the evidence supporting access ([38]) is problematic for the pop music realm, since access to forty-year-old classics is as pervasive as the practice of borrowing from them. An inference drawn by combining a classic song’s prevalence with low-threshold substantial similarity would create a standard under which most pop music would be infringing. This is not to say that modern hits are free to infringe old classics. But if infringement claimants cannot prove direct copying, the similarity between the two songs should be substantial enough to leave inspiration-driven homages safe.
Is That Enough?
Though jury trials can make music infringement results unpredictable, popular speculation on the “Blurred Lines” decision suggests the jurors were swayed by visual evidence of sheet music (proving similarity) and the defendants Thicke and Pharrell’s own admission they used “Got to Give it Up” as inspiration (proving access). So despite criticism that, even with proof of copying, the finding of similarity in that case was faulty and could lead to a chilling effect on pop composition, a jury may respond favourably to the strong visual evidence in the “Amazing” claim. Lacking in such visual evidence or reference to forensic musicology, the “Let’s Get it On” claim appears less persuasive. Time will tell whether Sheeran walks or settles away from either.
(Merely semi-related but interesting: a third lawsuit against Sheeran and Bruno Mars by frivolously litigious “democratic presidential nominee” Christin Griskie was dismissed in 2015.)
Jordan Fine is Senior Editor of the IPilogue and Intellectual Property Journal and a JD candidate at Osgoode Hall Law School. Jordan is enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.