Exclusives 6 September 2022

GRM Exclusive: How Artists Can Run Afoul of Copyright Law & The Many Consequences Explained

6 September 2022

Written By: Niambi Bridge

Ed Sheeran is one of Britain’s most successful Pop powerhouses within music, not only has he won numerous Grammy Awards but he was also awarded an MBE by the Prince of Wales for his illustrious music career back in 2017. Ed Sheeran continues to have immense chart success with 13 UK number 1 singles and all 5 of his albums have reached the number 1 spot on the UK Official Charts, his talent and ability to write and perform nation grabbing hits is undeniable. However, throughout his career he has (along with his production/writing team Johnny McDaid and Steve Mac) had several plagiarism/copyright infringement cases and accusations, and many have questioned if he was stealing other creatives singers/songwriters’ work to add value to his own music. On the other hand, many argue that Ed is a musical genius who is inspired by the work that came before him. 

Plagiarism is the deliberate act of copying another’s work as your own which infringes the original owner’s copyright. Copyright is a type of intellectual property that allows the owner to have exclusive legal rights, some of these rights may be to copy, adapt, assign, distribute, exploit and so on a piece of work. Copyright is automatically arising when an original piece of work is created and fixed in a tangible expression (documented), this protects the original rights owner and allows them to have autonomy over their work. The legal principle of Copyright is governed by the Copyright, Design and Patents Act 1988, although other territories such as the US have similar laws relating to Copyright there are some differences such as the ability to register copyright within the US but not within the UK. 

So how does copyright impact music? A song consists of two different types of copyrights, the first covers the actual sound recording itself, this is the recorded element often referred to as the master recording. The master recording is the copyright that artists (vocal performers) have ownership of which may then be assigned to labels to exploit. The second copyright within music is the underlying composition which consists of lyrics and melodies, this is the element that songwriters, producers and or publishers own. If you wish to use the master recording and or the melody and lyrics of a song within your music, you must seek a sample clearance where a fee and credits are given to the original rights owners, if you do not, this is a copyright infringement and may be deemed as plagiarism. 

One of Ed Sheeran’s earliest claims of copyright infringement arose after his iconic hit named “Photographs” was released in 2014. The chorus of the record was scrutinised and compared to the X Factor star – Matt Cardle’s song “Amazing” written by songwriters Martin Harrington and Thomas Leonard first released in 2011 (3 years before Ed Sheeran’s “Photograph”). The case brought claims against Ed and Johnny since the claimants argued that the song was a clear example of infringing a pre-existing musical composition. Although Matt himself the singer who performed the song did not have any issue with the potential usage, the aspect of the music copyright that was infringed was owned by the songwriters – the original owners of the lyrics and melody. This case was settled out of court in 2017 by way of a lump sum payment of £4.1m attributed to the original songwriters but the settlement did not reflect an admission of guilt by Ed Sheeran. In a recent interview aired on Newsnight/BBC, Ed Sheeran stated the “regrets” settling as it appears to the public that the claimants had a strong case and he believed that it may allow a floodgate of many baseless claims, 

  • 2016 – Law Suit filed against Ed Sheeran’s “Thinking out Loud” (2014) vs Marvin Gaye’s “Let’s Get It On” (1973).

The majority of the public would agree that the tracks do sound alike, they both use a similar chord progression and play in the same rhythm. Additionally, it doesn’t help that Ed too agreed that the tracks sound similar and would often intertwine the two records to create a mash up of the records which he would play while touring! But does this constitute copyright infringement? Borrowing chords and progression does not automatically mean copyright infringement has occurred, as no song is entirely original there are only so many chords that can be used in music as chords act as the foundation of music. What makes music original/distinguishable is the melody and lyrics and this is what is evaluated in plagiarism cases. 

The below songs all have the same 4 chords, have a listen and see if you can hear the similarities.  

· Idina Menzel – Let it go (Frozen) 

· The Black Eyed Peas – Where Is The Love.

· Coldplay – The Scientist.

· Iggy Pop – The Passenger.

· Taylor Swift – Clean.

· Tim Minchin – Canvas Bags.

· Beyoncé – If I Were A Boy

  • 2017 – Shape of You” Ed Sheeran vs “No Scrubs” TLC (1999) and “Oh Why” Sami Switch (2015). 

Ed Sheeran lifts the chorus and hook for TLC no scrubs, intentionally as he wanted the song to provide an R&B feel and therefore TLC were credited as songwriters. 

However, a Grime artist named Sami Switch argued that he too deserved a writer’s credit, he argued that the “Oh I” x4 in the melody of the post-chorus of Ed’s track is the same as his “Oh Why”x4 in his hook. They both sound similar and use similar lyrics, but once again the lyrics are typical/generic lyrics that have been used countless in millions of tracks and therefore not distinguishable. As a result, the claim failed. 

  • 2014 “Don’t” vs (200) “Don’t Mess with My Man, by Luci Pearl, written by Raphael Saadiq, Dawn Robinson and Conesha Owens. Have similar melodies and lyrics. 
  • 2017 – “Strip That Down” by Liam Payne, written by Ed Sheeran vs 2000 “It Wasn’t Me” by Shaggy (written by numerous songwriters and in fact Shaggy’s hit also contained a sample which means that all the original writers of the sampled song were credited!).
  • 2017 – “The rest of Our Lives” by Tim McGraw and Faith Hill, written by Ed Sheeran vs (2015) “When I Found You” by Jasmine Rae, written by Jasmine Rae, Sean Carey, and Beau Golden. The introduction melodies and the verse were near identical. This case was settled in court.

Although sampling had once been an honourable thing to do as a musician, as times have progressed many musicians have not taken a liking to others using their materials without being credited and/or compensated. In the digital age for instance many producers ask themselves can I get away with it? Rather than having a moral ethic that stops unlawful use of other musician’s copyright, and although some musicians do get away with unlawful sample/plagiarism (especially if the song/artist is relatively unknown) major issues can arise if the song becomes a hit, the original rights owners can claim damages and even an injunction to stop the track being consumed which not only is costly but also brings about negative press. 

Although it is important to get samples cleared by the rights owners, we sometimes see instances that although the sample can be cleared by the rights owners – the performers may have a distaste for the new track but have no legal power to stop the clearance, this, for instance, was the case with Kanye’s West breakout hit “Through the Wire” where Kanye replayed the original master recording and intertwined it in his record, Chaka Khan the performed stated she hated her “chipmunk like” vocals. Or more recently we have seen Beyonce remove the sample of Kelis’s smash hit Milkshake (written by Chad Hugo and Pharrell William) from her “Break My Soul” smash not because she legally didn’t clear the sample, but out of the performers’ distaste and disapproval of the use.

If you missed the last instalment of Law, Schooled; be sure to check out our breakdown of NFTs and intellectual property right here