updated on 29 March 2022
QuestionIs copyright law stifling creativity in the music sector?
Copyright law has been around since the 18th Century to protect the expression of ideas. However, changes in the way we create and consume music in recent years have led to a dramatic increase in copyright infringement cases in the music sector. Their vulnerability to litigation has made many songwriters fearful, and this risks stifling creativity.
Inspiration or appropriation? What the law says
Analysing the nature and provenance of apparent similarities is complex legal and musical territory. When considering whether copyright has been infringed, a comparison of the songs in question must take place.
First, the claimant must prove a causal link. This involves asking two questions. The first is whether the defendant had access to the claimant’s song (ie, did they likely hear it or see a score of it prior to or when writing the alleged infringing song?). The second question is whether the songs are objectively similar. This involves identifying the features that the claimant says were copied (most commonly melody and lyrics), and then asking if they are sufficiently close, numerous and extensive so as not to be coincidence. When considering this, commonplace features (eg, popular riffs, key changes or lyrical phrases) are ignored.
Second, and only if a causal link is established, the court will ask whether a substantial part of the claimant’s song has been copied. This can be substantial in quantity (a large portion) or quality (a significant or important part). If the court finds that a substantial part of the claimant’s song has been copied, its copyright has been infringed.
Hitting all the right notes
A vast quantity of music is being produced today due to advances in technology that make it easier and cheaper to produce and share professional music. Certain genres are also more susceptible than others to copyright claims: pop music, by its very nature, relies on simple, catchy melodies and structures, making incidental similarities between songs highly likely.
Incidental similarities aside, some songwriters are actively encouraged by record companies to step into the line of fire and write songs that imitate other hits. This is to enable the songs to be picked up by streaming platform algorithms, such as Spotify’s, which creates personalised playlists for users by analysing songs previously listened to and suggesting ones that are similar. With streaming now the most popular choice for music consumption, many record companies consider this a risk worth taking in order to gain maximum exposure for their new songs.
Feeling the music
Copyright has traditionally worked to protect specific aspects of songs, such as melodies or lyrics. However, 2018 saw the conclusion of a long running trial in the US (which has similar copyright laws to the UK) that controversially took copyright protection a step further. In Williams v Gaye, an appeal court in Los Angeles ordered hitmaker Pharrell Williams and singer Robin Thicke to pay the estate of Marvin Gaye $5.2 million for infringing the copyright of Gaye’s 1977 song “Got to Give it Up” in their 2013 hit “Blurred Lines”. In addition to damages, Gaye’s estate was held to be entitled to royalties for 50% of the songwriter and publishing revenue from “Blurred Lines” going forward. The controversial aspect of the court's decision was that in comparing the two songs, they found stylistic similarities to be the basis of copyright infringement, despite the songs being compositionally different. The one dissenting judge in the appeal court voiced concerns over the harmful precedent such an approach would set, stating that the songs “differed in melody, harmony and rhythm”, and that the verdict struck “a devastating blow to future musicians and composers everywhere”.
As a result of the judgment, songwriters can now seemingly be liable for copying the ‘feel’ or ‘vibe’ of a song. The very nature of music composition and its creative processes involves inspiration being taken from such intangible qualities, and common stylistic aspects are what makes a genre, a genre. The Williams v Gaye case certainly blurred the line between lawful inspiration and unlawful copying.
Big teams, big hits
In recent years, writing teams have grown in size, mainly due to increased pressures to produce more hits in shorter timeframes. This presents two risks to songwriters. First, having a large number of writers can make pinpointing specific influences significantly harder, especially when a number of efforts are combined, chopped and changed to create the final song. Second, the use of large teams means that writers will often be part of several teams writing songs for different artists. This can lead to potential homogenisation and an increased risk of unlawful similarities.
Some songwriters have taken precautionary steps to avoid litigation by giving credit to any writers who have even a possibility of a claim – Mark Ronson and Bruno Mars’ worldwide hit Uptown Funk famously ended up with 11 credited writers for this very reason.
The price of success
With mega-stardom comes increased exposure to copyright infringement claims. From a claimant’s perspective, fighting to prove infringement doesn’t come cheap. Bringing a claim is therefore only going to be worth the time, money and effort if the allegedly infringing song is a lucrative one. Take Ed Sheeran’s 2017 mega-hit “Shape of You”, the most-streamed song in Spotify’s history. Ed Sheeran is currently in the High Court defending an infringement claim over its memorable “Oh I, Oh I, Oh I, Oh I” hook, and has also had approximately £20 million in royalties suspended in the interim. Dua Lipa is also currently facing two copyright infringement claims in the US over her recent hit “Levitating”.
Songwriters are feeling vulnerable, and the resulting climate of fear is proving costly. Some record companies hire musicologists to analyse new songs for infringement potential, and some even have them on retainer. A more traditional option also remains available: insurance. Many artists have shielded themselves with insurance policies that will pay out in the event of liability, but artists that have already been exposed to claims may find themselves uninsurable or faced with astronomical premiums.
If found liable by the court, an artist will usually be ordered to pay damages, account for a percentage of profits made from the song, and pay royalties to the claimant going forward. Such sums can easily run into the millions, with substantial legal costs on top. If parties decide to reconcile out of court to avoid legal costs and publicity, any settlement sum will likely still be substantial. Finally, there is reputational damage – the public never look kindly on an artist who fails to give credit where it’s due. The stakes are therefore high for artists wanting to stay on the right side of the law.
With creativity being driven by freedom, not fear, it is perhaps not surprising that music artists of today feel shackled by copyright law.
Abigail Reay is a trainee at DWF Group Plc and is currently on secondment at Amazon.