You may have noticed that we are seeing increasing number of cases of music copyright lawsuits, namely where two songs sound so alike that it isn’t seen as a case of inspiration or coincidence, but that it is stealing. Most recently, a case with Katy Perry ruled that she is to pay £2.2m to a Christian rapper by the name of Flame after finding that her ‘Dark Horse’ song plagiarised Flame’s ‘Joyful Noise’. You can listen to Flame’s original here, and compare with Katy Perry’s here – What is your opinion? The minor chords in the background certainly sound the same, but is it going too far claiming the song as a whole is stolen? Although the case focused solely on the beat of Dark Horse, all six of its songwriters were judged to have infringed copyright, including lyricists Sarah Hudson and Juicy J, and all owe damages.
Publishing groups are pushing the USA to match the recent plan of copyright reforms set out by the European Union. This is ultimately revenue they are missing out on, revenue that once the law is changed doesn’t require much effort to then claim.
The fact that the Katy Perry case was successful sets a huge precedent moving forwards. It now becomes a question of artistic freedom and expression, if certain beats and chords are becoming exclusive to one artist or song, then musicians are going to be treading on eggshells from this point onward. As Katy Perry’s lawyer had summarised it, the prosecutors were “trying to own basic building blocks of music, the alphabet of music that should be available to everyone”.
So let’s look at some more instances, beat by beat if you will…
One of the biggest cases to hit the headlines was Ed Sheeran being sued by Marvin Gaye’s estate for allegedly copying parts of Gaye’s hit song ‘Lets’ Get It On’. This was to the tune of a whopping £76.4m. The suit is currently ongoing.
Is this a fair course copyright law should be taking? At least with trademarks there is an extensive trademark database that exists whereby you can try and find any existing trademarks that will cause infringement and to avoid potential clashes. But when writing a song what is the correct procedure to check if there are any existing melodies to avoid? The case of Robin Thicke v Marvin Gaye’s estate potentially proved that a genre of music could be copyrighted.
As musician Pharrell lamented since losing his copyright case, “You can’t copyright a feeling… All salsa songs sound pretty much the same.” He went on to make the moot point that his case, whether intentionally or not, has now cast doubt on what constitutes a ‘song’. The differences and similarities in melody, lyrics, sound, instruments – we now don’t know what combination will lead to an infringement and what is allowed. It leaves musicians not knowing of how to proceed in some cases.
While it has become more prominent as of late, these cases stretch back as far as the 1970’s, with George Harrison being found guilty of copyright of a hit by The Chiffons.
US IP firm partner Michael Kelber makes a counterargument that these high-profile cases may move musicians to solving these issues sooner rather than later as it “may prompt earlier settlement discussions and may lead to royalty sharing rather than going to trial.”
Still, the overwhelming feeling in the industry is that the tides are shifting and this is just the beginning of the new norm. Expect more cases of music copyright infringement between musicians to make the news.
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