According to the legal counsel of Ashfords, Carl Steele and Chris Fotheringham, British musician Ed Sheeran has recently been involved in a number of copyright disputes that have been brought before the courts in England and Wales as well as those in the United States. Although the courts in the UK will not allow artists to monopolize common musical elements, musicians must still be careful not to infringe on earlier works.
In the case of Mr. Edward Christopher Sheeran MBE and Others v. Mr. Sami Chokri and Others  EWHC 827 (Ch) , in which he was successful in obtaining a declaration of non-infringement of the copyright of the other side, judgment was rendered in April 2022.
Sheeran was able to demonstrate in a ruling that was handed down in the United States in May of this year that he did not copy Marvin Gaye’s song “Let’s Get It On” when he wrote “Thinking Out Loud.” After the win, Sheeran spoke to the media and expressed his dissatisfaction with the fact that defending copyright infringement claims has become a regular part of his job. He said that the “four chords that get used in pop songs” and the fact that “60,000 songs get released every single day” make it “mathematical” that songs will sound similar.
The following question is posed keeping in mind Sheeran’s statements: How careful should musicians be when writing songs to avoid violating copyright on previously written songs by third parties?
In the UK, intellectual property regulation is fundamentally represented by the Copyright, Plans and Licenses Act 1988.
S.1(1) of the demonstration expresses that copyright is a property right which stays alive in, bury alia, ‘unique scholarly, sensational, melodic or creative works’ and ‘sound accounts’. A “work consisting of music, exclusive of any words or action intended to be sung, spoken, or performed with the music” is what the act defines as a “musical work” in section 3(1). For copyright to apply, the work must be “recorded in writing or otherwise” (section 3(2) of the act).
A work must be original for copyright protection to apply to it. The test for originality has been confirmed by recent EU case law (Infopaq International A/S v. Danske Dagblades Forening, 2009; Cofemel Sociedade de Vestuario SA – v-G-Star Crude CV). This is a test of two limbs:
- As an expression of the author’s own intellectual creation, the work must reflect the author’s personality by expressing their free and creative choices; and
- The subject matter needs to be recognizable with enough objectivity and precision.
Encroachment under the Demonstration
To encroach a current work, another work needs to ‘duplicate’ it (ss.16(1)(a) and 17(2) of the demonstration). ‘ Duplicated’ signifies ‘replicating the work in any material structure’.
To add up to encroachment, either the entire or a ‘significant piece’ of the work should be duplicated (s.16(3)(a) of the demonstration).
This is not a quantitative test but rather a qualitative one. (Newspaper Licensing Agency Ltd v. Meltwater Holdings BV ) Does the copied portion contain elements that are the expression of the author’s intellectual creation?
Is there infringement?
Replicating can be cognizant or subliminal. The evidential burden shifts to the alleged infringer to demonstrate, on the balance of probabilities, that they did not copy the earlier work if there is sufficient similarity between the two songs in question and credible proof of the alleged infringer’s ability to access the allegedly copied earlier work.
If the defendant is able to demonstrate independent creation (i.e., that they did not copy), mere similarity will not be sufficient. What’s more, regardless of whether replicating happen, there is no encroachment in the event that the duplicated part doesn’t contain components which are the outflow of the scholarly production of the creator of the work. The courts in this nation won’t permit a craftsman to corner a nonexclusive, usually utilized and unimaginative harmony succession. There is no infringement if all that has been “copied” is that.
Although we are unable to offer much insight into the copyright legislation in the United States, one significant distinction between the two nations is the manner in which such cases are heard. The case’s merits are decided by a jury in the United States, whereas they are decided by a legally trained judge in the UK. Even though jurors in the United States are instructed on legal matters by a judge who has been trained in law, jurors in the UK may be less likely to be influenced by such a factor when deciding on the merits.
During his recent US trial, it was reported that Sheeran played a “mash-up” of approximately 60 songs with the same four chords to emphasize that what he had allegedly “copied” from the earlier work were “basic musical building blocks that songwriters now and forever must be free to use,” as his lawyer put it. On the off chance that right, an adjudicator hearing the case on the opposite side of the lake would probably have reached a similar resolution with respect to the claim of copyright encroachment.
Source – globallegalpost