‘Music is so different today,’ says a legal expert. Copyright rules need to reform.
Songwriters such as Ed Sheeran risk lengthy legal fights in the future, a senior legal expert said, as she asked judges to reassess how they interpret copyright law.
The proliferation of streaming services like Spotify and YouTube, paired with the bigger teams of authors behind famous songs, has resulted in an increase in high-profile copyright infringement lawsuits in recent years. Sheeran is now embroiled in a legal dispute for Shape of You, Spotify’s most-streamed song ever.
Hayleigh Bosher, assistant dean of intellectual property law at Brunel University and a music industry researcher, said that “the law has to evolve” since “creating music is so different than it was 50 years ago.”
She said, “If Sheeran loses, I’m sure we’ll see an increase in cases.” I believe that copyright is not performing its job effectively if composers feel fearful; this stifles innovation.”
Two methods are used to determine if an artist has plagiarised another songwriter. To begin, determine if they are likely to have heard the music before composing their composition, and then determine whether they have significantly taken a portion from it.
Bosher noted that a landmark lawsuit in the United States in 2019 against Katy Perry was reversed last month on the grounds that the melody in issue was not “original or unusual.” It raises concerns about the process by which courts determine whether authors have heard a recording. Perry was likely to have heard the complainants’ music Joyful Noise since it had an average of 633,333 listens over six YouTube videos, the court ruled.
“That figure was very modest in comparison to the amount of stuff accessible online. “Just because something is on Spotify or YouTube does not imply it has been heard; there are hours and hours of music; it does not mean it has been heard,” Bosher said.
In Sheeran’s case, his attorneys testified before the UK’s highest court that the singer and his cowriters had no recollection of hearing the song Oh Why by Sami Switch – real name Sami Chokri – who claims he must have heard it since both songs surfaced on YouTube channel SBTV around the same time.
Bosher noted that it was unusual in Sheeran’s case that Chokri’s lawyers cited Sheeran’s previous settlements, such as with R&B girl group TLC over Shape of You’s resemblance to their 1990s hit No Scrubs, as evidence that he copied other artists – given that these settlements could have been reached simply to avoid a protracted legal battle. She said that this may be an indication that Sheeran wants to avoid opening the floodgates to further instances.
The second test is equally troublesome, since so much music is being created these days, and pop songs depend on recognisable structures and easy, catchy melodies, making inadvertent copying more probable than in other fields of the arts, Bosher said. Musicologists with whom she collaborates report strong demand for their services, as composers are eager to guarantee their compositions have “a personal imprint” in order to safeguard them.
Additionally, songwriting teams are growing in size, making it more difficult to pinpoint inspirations, according to Tom Gray, a composer and member of Gomez who serves as head of the Ivor’s Academy, an organisation that promotes music writers. “It’s always been a part of songwriting’s fabric because when you hear a tune, it sticks in your brain and you’re like, ‘What have I nicked?'”
He noted that this has been worsened by record labels’ pressure on songwriters to make songs that sound like previous hits in order to increase their chances of being picked up by Spotify’s algorithms.
Gray said that recent decisions including Robin Thicke’s Blurred Lines demonstrated a change in how courts understood copyright, away from identical melodies and toward harmonic similarities that implied “they took the mood of a tune.”
The Musician’s Union’s general secretary, Naomi Pohl, said the current spike in copyright claims against the world’s most popular pop singers underscores the industry’s imbalance. The majority of smaller-scale composers have seen earnings decline as a result of the change to streaming, while big performers are selling back albums for millions of pounds, she said. “There is a lot of money at stake, therefore there are substantial incentives.”