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The Eurovision Song Contest, otherwise known as the music party of the year. You’re guaranteed great music, outlandish outfits and routines, and expert backhanded wit from Graham Norton!

This year, the event was held in the UK on behalf of Ukraine. Yet during one performance this year many couldn’t help but notice similarities between a commercially successful hit, and a decent song as well.

Check out this Practice Area Profile on Intellectual Property to learn more about this practice area.

What happened?

Poland was represented in the event by Blanka, who performed the song ‘Solo’. However, the song was quickly compared to the commercially successful 2018 song of the same name by Clean Bandit and Demi Lovato.

While similarities can be coincidental, if a court determines that Blanka had access to Clean Bandit’s work and the song is deemed to have a substantial similarity in the melody, lyrics or arrangement with the Clean Bandit song, then a case for copyright infringement could potentially be made.

This comes after another high-profile court saga featuring Ed Sheeran, who earlier this year was taken to court in New York. The case was brought forward by relations of Ed Townsend, one of the writers of the Marvin Gaye song ‘Let’s Get It On’, who claimed Sheeran had copied the song’s chord progression and harmonic rhythm for his song, ‘Thinking Out Loud’ and had thus allegedly infringed on the original work.

It was found that the chord progression that Sheeran was alleged to have copied wasn’t unique enough to merit a copyright infringement claim. The court ruled that sharing a “feel” or “groove” was not grounds for infringement.

How’s copyright infringed?

Copying the original literary, dramatic, musical or artistic works (LDMA) of another is the most obvious way of infringing copyright. The infringement needs to be all or a substantial part of the original work, judged qualitatively not quantitatively, so even if only a small part of the original work is copied, there may still be a case for infringement.

Copyright in original works arises automatically and there’s no need to register it or label it with the (c) mark, although in practice it helps to assert ownership over the work. Meanwhile, copyright in original musical works is protected for the lifetime of the creator, plus 70 years after the year of their death.

In this case, Gaye’s song ‘Let’s Get It On’ will be protected until the end of 2074, 70 years after the end of 2003 when the last surviving creator of the song Ed Townsend died. The song ‘Solo’ by Clean Bandit and Demi Lovato will be protected until 70 years after the death of its creators.

What would this mean for Blanka?

The Sheeran verdict could set a precedent not just for Blanka, but for future songwriters and songs to come. For example, if the court decide that Blanka only copied the title, general theme or style of ‘Solo’ it may not be enough for a successful copyright infringement claim. Plenty of songs have the same title, same general theme, or same style as one another and there are only so many styles that can be used to form a song! It’s arguably inevitable that some songs will have the same name even if the style and theme are different.

The upside for Blanka is that, following Eurovision, she’s gained a much greater appeal and a wider audience. Even if listeners were initially drawn to her due to her entry’s alleged similarity to such a popular song, they may stay for the artist’s unique style or twist on that song to make it her own. This could, in turn, lead to increased purchases, streams and downloads of not only this song, but also of her back catalogue, as well as merchandising opportunities for clothing or other memorabilia and the securing of more live performances off the back of Eurovision.

What would this mean for Demi Lovato and Clean Bandit?

As the owners of the original work that’s allegedly been infringed, there are options available.

They could decide that they want to file a claim. The court will first expect the parties to try to either settle between themselves or mediate and work out how both works could coexist before formal court-led proceedings start. If that doesn’t work, a claim could be filed with the Intellectual Property Enterprise Court (IPEC) or the Chancery Division of the High Court if the damages being sought exceed £500,000. IP litigation is expensive and stressful, even if they win, it’s still time, energy and money spent on the claim that they may not get back.

They may take the view that, in light of the Sheeran verdict, they may not have a case or that filing a claim may not be worth it, especially if Blanka and the other songwriters can’t pay the damages amount. Equally, they’d have to consider the social impact of filing a claim against a song written for an event with a colourful party atmosphere and inclusive culture that perhaps won’t look favourably on them. Reputation counts for more than we may give credit for in deciding whether to file or not.

They might even decide that this could be a good opportunity to remix the song and re-release it to bring in potential new listeners who weren’t aware of them before Eurovison!

These options are all valid and on the table, depending on their appetite for litigation, collaboration or just carrying on with their own business.