It seems that copyright battles are a dime a dozen in the music industry.
Recently, Dua Lipa’s biggest song, “Levitating” was hit with two high-profile lawsuits from artists claiming their songs were ripped off by the chart-topping hit. Ed Sheeran’s legal battle with songwriters Sami Chokri and Ross O’Donoghue, who allege that Sheeran’s “Shape of You” copied Chokri’s “Oh Why”, was just resolved in Sheeran’s favour. And Katy Perry just won a long copyright battle as the U.S. Court of Appeals decided that her song “Dark Horse” did not infringe a Christian hip-hop artist’s “Joyful Noise” song.
These copyright battles can be a costly experience. For example, Robin Thicke and Pharrell Williams had to pay Marvin Gaye’s estate over $7 million after they were deemed to have stolen elements of one his tracks.
What can we learn from big name artists hit with infringement lawsuits? What exactly does copyright protection cover?
For creative expressions like songs, copyright is a type of intellectual property that can protect the time and effort put into the creative process and allow creators to generate revenue streams through licensing for their talent.
Copyright protection is automatically applied to original creative expressions such as literary, musical, dramatic, and artistic works – or even software code and can protect against others reproducing the work or copying a substantial portion of it.
For songwriters and singers, this means the musical composition as well as the lyrics can fall under copyright protection, granting the owner of a soundtrack exclusive rights for reproducing, redistributing and public performances of their song.
The owner of the soundtrack also has the right to create derivative versions of the original work such as a translation of the original song. Finally, the owner is entitled to give licensing rights to the soundtrack (or derivatives) in demand of royalties.
Proving copyright isn’t always easy, since you need to provide proof that the infringer actually copied (a substantial) part of your original work and did not come up with a similar or identical work coincidentally.
Because of this, there is a degree of subjectivity when attempting to determine the likelihood that a creative expression was intentionally duplicated and can make it difficult to prove. Especially in the music industry.
After the court ruled in his favour, Ed Sheeran said, “It’s really damaging to the song writing industry. There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year, and there are only 12 notes that are available.”
With that in mind, it must be determined that elements from the song that appear to have been copied be “original” to fall under copyright protection.
A concrete example of this occurred in the Katy Perry case regarding “Dark Horse.” The US Court of Appeal decided that “copyright protection does not extend to “common or trite musical elements, or commonplace elements that are firmly rooted in the genre’s tradition”.
In other words, (and as Ed Sheeran suggested) some parts of music may just be too common to prove deliberate, specific copyright infringement. It was found that the ostinatos (short melodic phrase repeated throughout the song) in Katy Perry’s song were not an original expression eligible for copyright protection.
Another difficulty is to prove that the infringer could reasonably have listened to the song which he/she then copied. If the song is on YouTube but has very low views, and it is not available or has very low popularity through other channels (e.g., Spotify), then it will be more difficult to argue that the song was copied and not a complete coincidence.
A musician will inevitably hear things he/she wants to incorporate into his/her own music. However, taking too much from another’s original work is not allowed, so it must be figured out how much is too much.
The creative process is nuanced and must allow for inspiration, account for coincidence, and protect against infringement.
The importance of copyright protection cannot be overstated. But as the numerous battles (and varied outcomes) in the music industry demonstrate, it can be a tricky area to navigate and interpret.
As a result, it can be more difficult to assess and enforce than other areas of IP such as patents, whose claim language makes it easier to decide whether an idea or concept infringes.
Different tests have emerged from the courts in an effort to better define the boundaries of acceptable practices within the music industry and to help determine whether a soundtrack is indeed reproduced or copied for at least a substantial part.
Emulating small fragments of a soundtrack will, in most cases, only be called infringement if they are very important to the original work. If large fragments are reproduced, the chance is higher that a court will decide that it is copyright infringement, but not if the taking only consists of very common music fragments.
Imitation may be the sincerest form of flattery, but be careful that it’s not also copyright infringement…
Do you have a question about copyright? Stratford Intellectual Property is happy to help.
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About Kim: A registered trademark agent in Canada, Kim is an IP Specialist with a unique combination of skills, education, and assets with a drive for success and a passion for Intellectual Property. Working with growing organizations for many years she’s honed her ability to be both creative and strategic with IP solutions and strategy implementation plans.
She specializes in IP analytics and Trademark Strategy and Prosecution. Before becoming an IP specialist at Stratford, she practiced law in Belgium for 5 years. Kim holds an LLB and LLM in law from Belgium and followed trademark studies at McGill University.