‘Where there’s a hit, there’s a writ.’
That, apparently, is the saying coined by the music industry some decades ago to sum up the unfortunate fact that the most popular songs are often hit by legal challenges alleging that they have been copied – either consciously or unconsciously.
One of the first such cases involved Beatle George Harrison, who was sued in 1971 over his solo hit ‘My Sweet Lord’. The case was brought by Bright Tunes Music Corp over the track’s alleged similarities to a hit by The Chiffons a decade earlier, called ‘He’s So Fine’.
That long-running legal battle eventually ended with the court finding that there had been ‘unconscious plagiarism’, because it was considered likely that Harrison would have heard the earlier song. According to a report by The Guardian, after the gruelling experience of being sued, Harrison was so worried about being labelled with plagiarism that he became somewhat paranoid about composing, telling reporters, ‘I thought, God, I don’t even want to touch the guitar or a piano in case I am touching somebody’s note.’
Last week it was pop superstar Ed Sheeran in the firing line, as he appeared in a New York court to defend himself against a plagiarism claim over alleged similarities between his ballad ‘Thinking out loud’ and Marvin Gaye’s track, ‘Let’s get it on’. The lawsuit is being brought by the family of Ed Townsend, who co-wrote the song with Gaye.
The claim alleges that Sheeran and his co-writer copied an ascending four-chord sequence, and its rhythm. Sheeran argues that the two songs share versions of a ‘similar and unprotectable chord progression’ that is freely available to all songwriters.
The plaintiff’s music expert described the chords in the two songs as ‘virtually interchangeable’, though slightly different. But Sheeran’s expert said the chord sequence was not unique, and gave examples of its use in numerous songs by different artists.
Sheeran had actually played a ‘mashup’ of ‘Thinking Out Loud’ and ‘Let’s Get It On’ during one of his live performances. According to the Guardian’s report of last week’s hearing, the plaintiff’s lawyer suggested this mashup amounted to ‘a confession’ of plagiarism. But a bristling Sheeran said that ‘If I had done what you’re accusing me of doing, I’d be a quite an idiot to stand on a stage in front of 20,000 people and do that.’
He added that ‘Most pop songs can fit over most pop songs’.
These music plagiarism cases are by no means restricted to the US, and in April last year Sheeran won a battle in the UK courts over his song ‘Shape of You’, in which the court found that he had ‘neither deliberately nor subconsciously’ copied the work of songwriters Sami Chokri and Ross O’Donoghue.
Are we likely to see more of these types of claim in future, on both sides of the Atlantic? Clearly the outcome of this latest high-profile ruling will be closely watched – and if the court does agree with the assertion of Sheeran’s legal team that the chord sequence involved is not unique, and so not protected, this might make would-be litigants a little more wary of bringing claims.
But there is another factor at large that will have a much bigger impact: artificial intelligence. AI already has a part to play in cases of this type, and its role will only get bigger. With AI’s potential to swiftly sweep through thousands of songs and flag up similar patterns in an instant, no similarity will go unnoticed – or unexploited.
To misquote Sheeran’s biggest hit, even more litigation over music plagiarism could be the shape of things to come.
May 2, 2023
Insights
