Singer-songwriter and the nation’s favourite ginger Ed Sheeran has recently settled a £16 million lawsuit.
The infringement is over Ed’s ‘Photograph’ and 2012 X-Factor winner Matt Cardle’s ‘Amazing’, which was brought to court by the songwriters Thomas Leonard and Martin Harrison. It has been widely reported that the songwriters accused our beloved redhead of copying 39 notes from Cardle’s song.
Richard Busch, who also represented Marvin Gaye’s estate in the ‘Blurred Lines’ case, filed a lawsuit on behalf of the songwriters of ‘Amazing’ in that : “The songs’ similarities reach the very essence of the work. The similarities go beyond substantial, which is itself sufficient to establish copyright infringement, and are in fact striking. The similarity of words, vocal style, vocal melody, melody, and rhythm are clear indicators, among other things, that ‘Photograph’ copies ‘Amazing’.”
Everyone is making music, and who’s to say which melody or chord progression is owned by which artist. At the risk of sounding like a hippy, music isn’t something you can ‘own’. It’s ‘out there’, to be discovered, not like the Mona Lisa which you can hold, possess, even steal.
But according to the law music can be stolen, and laws can be applied to the world of music. There are two elements to proving copyright infringement against another artist: access and similarity. Access means the likelihood that Ed Sheeran heard Matt Cardle’s ‘Amazing’ at some point, or to have been exposed to it. Similarity is the extent to which the compositions are the same, in terms of melodic structure or chord progression.
Neither of these things appears easy to establish. The tests for similarity vary from the ‘ordinary observer test’, which relies on an ordinary listener to determine the sameness of two songs. In courts, however, the track may be de-constructed to its constituent parts by musicologists for a jury.
This has been bad news for 39 shared notes ‘Photograph’. Its chorus bears a similarity to ‘Amazing’ which even the most die-hard Ed Sheeran fan would find worrying. If you listen to the songs for yourself then you’ll see it doesn’t take a musicologist to hear where the lawsuit came from.
Infringement of music copyright doesn’t even have to be intentional, in what is known as “strict liability tort.” You may not have intended for your début single to rip off a previous artist, but it can be expensive if it does.
While some cases do go to court, there are a myriad which don’t. The cases are expensive, messy, and ugly. The accused comes out looking like a fraud, and the plaintiff (the one doing the accusing) looks greedy and miserly.
Unfortunately for Ed this is not the only time he has come into the firing line of music copyright law. Shortly after the June 2016 lawsuit against ‘Photograph’, another case was brought against him for a dispute over the similarities of ‘Thinking Out Loud’ and Marvin Gaye’s 1973 ‘Let’s Get It On’.
An agreement has since been reached by the parties and the case was dismissed in a California court.