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If all the music in the world is protected by copyright, then what will this mean for songwriters' futures?

In May 2018, Ed Sheeran felt the shivers when grime artist Sami Chokri and producer Ross O’Donoghue bought a claim for copyright infringement against him. At the heart of the claim was that "particular lines and phrases" from Chokri's song “Oh Why” were copied by Sheeran when he wrote and released “Shape of You” in 2017.

In April 2022, the High Court determined that Sheeran "neither deliberately nor subconsciously" copied the hook from Oh Why. Judge Antony Zacaroli acknowledged that there were “similarities between the one-bar phrase”, but that there was compelling evidence that the line “originated from sources other than Oh Why”.

What is copyright?

Copyright protects original literary, dramatic, musical and artistic works (“LDMA”), sound recordings, films, broadcasts or cable programmes, and written editions of LDMA works from being copied or infringed.

It arises automatically and there is no obligation to register or label it with the (c) mark (but in practice, many label their works as it helps assert ownership).

Copyright is also time limited. For original musical works, the work is protected for the lifetime of the creator plus for 70 years after the end of the year of their death.

How is copyright infringed?

The most obvious way is by copying the original work. This means the original work is copied in any material form, like a CD to a music file (.mp3, .wav etc) or a 3D copy of 2D work and vice versa, or by transforming the format of one LDMA work to another without permission, eg turning a film script into a theatre performance or the sampling of an existing music track for another song.

The infringement needs to be of all or a substantial part of the original work. This is judged qualitatively, not quantitatively, so it could only be a tiny part of the original work that gives rise to claims of infringement, even if the copying is subconscious.

This isn’t the first time there have been claims from one artist to another to say that their work has been infringed. Some went to court, whilst others were handled outside of court.

Some examples

Queen and David Bowie vs Vanilla Ice

Queen and David Bowie collaborated to create “Under Pressure”. Then nine years later, hip-hop one-hit-wonder Vanilla Ice released “Ice Ice Baby” sampling the bassline for “Under Pressure”. This one was pretty obvious!

The parties settled out of court for an undisclosed sum.

Green Day vs Oasis

Noel Gallagher criticised “Green Day” for stealing the chord progression of “Wonderwall” for the song "Boulevard of Broken Dreams".

It never became litigated; all that came from it was some moaning from Gallagher in 2006 (quelle surprise!).

Bring Me the Horizon vs Evanescence

Evanescence sued Bring Me the Horizon for infringement of the vocal melody of “Never Go Back" for the song "Nihilist Blues".

But it ended happily as Evanescence frontwoman Amy Lee is a fan of Bring Me the Horizon. So they agreed to share song writing credit on "Nihilist Blues", and collaborated on a track for Bring Me the Horizon, "Post Human: Survival Horror”.

What does this mean going forward?

There are only so many chords and notes in existence, which means there will be a finite number of combinations in which the chords and notes are used. So, when all the combinations have been used, then what happens?

Coincidences will inevitably happen where new songs appear to infringe older songs because parts here and there sound similar, especially when the time comes when all the possible combinations of chords and notes have been created and are still protected by copyright.

With over 60,000 songs uploaded onto Spotify every day, and the service hosting more than 70 million tracks in total, it’s difficult to argue that something like this will happen.

To try and mitigate this, it makes sense to document everything that songwriters do when creating and to keep evidence of their daily actions. This means, should there be any complaints, they can present the actions they took when creating should there be any claim bought. This is a easy to do now due to smartphones and access to cloud storage to save these logs.

But it means that time spent writing songs will be even longer because of having to take extra care that writers aren’t copying parts from any other song in existence. This is a huge task for any one person or team, and so there will be time and money costs in searching for or paying people to search for original works that have parts that sound similar to their own creation. This means longer waits to create new works, longer waits to receive money from these works, and longer waits for consumers to enjoy new music from artists they follow.

So then arises the question “what is now a reasonable response to allegations of copyright breaches?”

IP litigation is very expensive, and any kind of litigation process is stressful for lawyers and clients alike, regardless of who you are. “Traumatising” is how Sheeran described it!

I believe informal should always be explored first – write to the infringer, explain the situation, assert your right, and look to work on coexisting. The infringer has the right to make a living just like the claimant, and it could be that they simply made a mistake. It happens! Plus taking the informal track first saves on costs.

It also works in the claimant’s favour as courts will be asking what they have done to resolve this pre-court. If parties have done nothing pre-court, then it may affect costs at the conclusion of the process.

Final thoughts

Evanescence had the right idea, I believe. Sit down and talk, lay out the facts, and work together so the works can coexist. And you see it even led to a meaningful collaboration and a good relationship being built.