A Critical Analysis On The Determination Of Copyright Infringement In Sound-Alike Songs With Reference To “Ed Sheeren Vs Sami Chokri

Introduction

Humans and music have been entwined from the beginning of time. Various kinds of expression are subject to an identical criterion for copyright infringement. However, because of its distinctive characteristics, musical expressiveness presents significant difficulties for courts adjudicating infringement issues. Contrary to literature or physical manifestations of art such as paintings and sculptures, music is capable of a vast variety of creative possibilities, yet it is unable to function properly beyond its conceptual structure. While autonomous creativity disproves plagiarism, judges frequently struggle to determine if accused songwriters violated prior protected works or just came up with a structure, harmony or lyrics that was akin to others. Lawsuits alleging copyright infringement premised on musically similar works is not a new concept in the music industry. “Under Pressure”, a 1981 duet, was a number-one single in the UK. Later in 1990,  Rapper Vanilla Ice delivered the single Ice Ice Baby later that year, which featured a sampling of the iconic baseline by John Deacon. An out-of-court settlement of the lawsuit against the rapper resulted in payment to David Bowie and Queen as well as songwriting credit. In 1984, John Fogerty was forced to defend himself after his former record company accused him of copying “The Old Man Down the Road” without permission. The record label claimed that after giving up the rights to his earlier compositions, he had used an identical chorus but changed lyrics, to steal his own hit song, “Run Through the Jungle.” The dispute was finally won by Fogerty. He carried his guitar to the witness box and performed snippets from each song to convince the court that even if the two tracks had separate compositions, his “swamp-rock” style could make them sound identical.[i] A court in the U.S. District Court for the Central District of California determined in March 2015 that the song Blurred Lines by Robin Thicke and Pharrell Williams violated Marvin Gaye’s “Got to Give It Up”, which was composed more than thirty years earlier. Due to the fact that the two tracks were “substantially similar,” the jury determined that Thicke and Williams’ song violated Gaye’s song.[ii]  Several sound-alike lawsuits in recent times has sparked worries among composers and musicians who are accused of stealing essential components of music they might have never heard. Sami Chokri made one such accusation of plagiarism when he claimed that Ed Sheeran, his co-writers, and producer plagiarized the 2015 song “Oh Why” for the song “Shape of you.”

Copyright Music

[Image Sources : Shutterstock]

Background

“Copying” must be done in order to violate copyright laws, albeit this can be assumed based on circumstantial evidence. As a result, a creator may technically autonomously reproduce a previously made work without violating the copyright of the original creator. In the absence of direct evidence of real copying by the accused, the claimant of lawsuit should then demonstrate real “copying” by establishing that the accused had knowledge to the earlier work and that the creations are “substantially similar”.  The claimed copying also should contain a protected component.  This suggests that essential components must be sufficient and their choice and layout should be creative enough to make up an original patentable product.

After being released in January 2017, “Shape of you” quickly rose to fame among musical fans across the globe and was named the best-selling digital single of that year. In contrast, the song “Oh Why,” was sung by Sami Switch and appeared on his album “Solace,” which was released in March 2015.  Sami Chokri, Ross O’Donoghue, and Artists and Company Limited were the targets of a lawsuit brought by Ed Sheeran, Steven McCutcheon, and John McDaid, Sony/Atv Music Publishing (UK) Limited, Rokstone Music Limited, and Polar Patrol Music Limited.  The claimants filed the lawsuit (no. IL-2018-000095) in 2018 in an effort to obtain a ruling that the infringement of the copyright of the track “Oh Why” had not occurred whilst composing the track “Shape of you.” The defendants responded with a counterclaim alleging that the plaintiffs had violated the copyright for “Oh Why.”

Issues and Observation of the Court

Similarities and Differences between the two songs

The United Kingdom’s Copyright, Designs and Patents Act (CDPA) 1988’s clearly differentiates between musical and lyrical compositions. In accordance with the lawsuit, the only thing Ed Sheeran was accused of was creating a musical composition that was “exclusive of any words or action intended to be sung, spoken, or performed with the music”.  Considering the level of the claimed similarity, that equated to the “Oh I Post-Chorus,” which was claimed to replicate a musical phrase performed to the lines “Oh why, oh why, oh why, oh,”. It was claimed, in line with the Smith v. Dryden[iii] ruling, that it is a more probable “coincidence” than “copying” when these notes are reproduced in the same order as the scale. When comparing the tracks, the judge observed that although there were some parallels such as in the vocalization and harmonies of the two songs, there were also a variety of major variances, such as in the composition, pace, and atmosphere.

Subconscious or Conscious Copying

The Defendants said that claimants had consciously or unconsciously copied the  “Oh Why” phrase. Further, they also claimed that Ed Sheeren could have come across the track due to him being a part of the UK music scene and through his various industry contacts. In the end, the Judge stated that there was no proof that the claimants have done so,  and  pointed out that several components shared by both songs were present in a wide variety of music present in the music industry. With regards to Subconscious Copying, the court pointed out that hat the attempts to market “Oh Why” on social networking sites had not been “materially successful” and that the track had only received 12,914 YouTube views in the period of two years. Finally, the  Judge came to the conclusion that it is “at best speculative” that the defendant’s efforts to promote and spread his music may well have brought it to claimant’s knowledge.

Conclusion

The development of digital content has made it simple to share music globally. Musicians and composers must take immediate measures if they believe their material has been stolen or exploited in another way without their consent, compensation, or even acknowledgment. Alternatively, they risk a rise in unauthorized usage of their art. The audience that purchases records may become confused by sound-alikes, particularly if the publication makes mention of the legitimate performers. In the present case, Chokri had to demonstrate that Sheeran had heard his music for the parallels to be more than coincidental. The judgement was rendered in Ed Sheeren’s favour since the defendant was unable to prove this sentiment. The case was keenly watched in the legal and music sectors, with some experts expressing worry that the copyright legislation is out of date. The judgement and its effects demonstrate how technology and the internet is influencing not just the judicial process but also the artistic process in general.

Author: Trisha Naik, A student of Symbiosis Law School, Hyderabad, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  1. Livingston, Margit, and Joseph Urbinato. “Copyright infringement of music: determining whether what sounds alike is alike.”  J. Ent. & Tech. L.15 (2012): 227.
  2. Tschider, Charlotte. “Automating Music Similarity Analysis in’Sound-Alike’Copyright Infringement Cases.” (2014).
  3. Demers, Joanna. “Sound-Alikes, Law, and Style.” UMKC L. Rev.83 (2014): 303.
  4. Booth, Nicholas. “Backing Down: Blurred Lines in the Standards for Analysis of Substantial Similarity in Copyright Infringement for Musical Works.”  Intell. Prop. L.24 (2016): 99.
  5. https://www.musicbusinessworldwide.com/why-ed-sheerans-copyright-victory-matters-by-the-lawyers-than-represented-him/
  6. https://www.theguardian.com/music/2022/apr/06/ed-sheeran-wins-court-battle-over-shape-of-you-plagiarism-accusation
  7. https://www.bbc.com/news/entertainment-arts-61006984
  8. https://www.nationalworld.com/news/people/ed-sheeran-court-case-shape-of-you-copyright-claims-sami-chokri-oh-why-3601358

[i] Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)

[ii] Williams v. Bridgeport Music, Inc., 2014 U.S. Dist. LEXIS 182240 (C.D. Cal. 2014)

[iii] [2021] EWHC 2277 (IPEC)

Leave a Reply

Categories

Archives

  • October 2024
  • September 2024
  • August 2024
  • July 2024
  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010