Art or copy: copyright disputes in pop music

Copyright protects ideas, it protects – in terms of pop music – the artist who has first turned an idea into a work, i.e. who has created something new. This mechanism clashes with an industry that thrives on inspiration and further development. Also, because chord progressions are finite, the danger of similarity constantly lurks – whether intentional or not. In times of digitalization, retrieving music is much easier, but so is copying and transforming. When even the smallest similarities result in copyright lawsuits, there’s not much left of the creative process – at least that’s what artists like Ed Sheeran complain about.

Copyright infringement litigation is not only complex from a legal point of view, but also from an economic point of view, because the artist affected usually has a lot at stake, and the plaintiff is tempted by potentially high settlement sums. Thus, a copyright infringement can quickly become an expensive matter. Just recently, after four years, the English High Court ruled that singer Ed Sheeran had not cribbed from Sami Chokri and Ross O’Donoghue and their song “Oh Why” from 2015 for his most famous song “Shape of you” from 2017. This brings an argument to an end, but it does not put the problem to rest. Because in other places it is always the same problem, that famous musicians have stolen from lesser known. Dua Lipa currently has to defend herself in court because of her song “Levitating”. Stars such as Mariah Carey and Katy Perry have also been accused of copyright infringement. A summary of the problem:

Copyright infringement – the plagiarism

In 2020, the European Court of Justice (ECJ) made a landmark decision in the case of Kraftwerk against Moses Pelham, which at least provided clarity in the EU. We have already presented this judgment (https://www.katheraugenstein.com/en/metal-on-metal-judgement-on-judgement-the-copyright-dispute-between-kraftwerk-and-moses-pelham/). Basically, the ECJ ruled that “the reproduction of an audio fragment – even a very short one – of a phonogram by a user is in principle considered to be a partial reproduction within the meaning of Art. 2 lit. c of Directive 2001/29/EC and such reproduction is thus covered by the exclusive right of the phonogram producer under this provision”.

Is therefore already the minimal inspiration and adoption of harmonics or a short melodic section plagiarism, if it is not indicated who served as inspiration? It is true that an copyright infringement can be avoided despite the adoption of audio fragments if an audible reference to the original work is no longer comprehensible due to the modification of the fragment. However, pop music at least lives from simple chord sequences that may quickly seem familiar from other songs. Therefore, the complex question must always be answered: Where does artistic freedom end and copyright infringement begin?

The decisive factor in answering this question is whether there is a sufficient distance between the original work and the adaptation and whether both works are considered independent. The individuality of the work and its recognition value are decisive for the recognition value. It therefore depends on whether an average listener perceives the new work as such or whether the similarity to the original is unmistakable.

In the case of Ed Sheeran, the court has now decided that he had not copied parts of his song, neither “intentionally nor subconsciously”. So the court is basing this purely on the subjective level. Courts have to deal with the question: Where is the boundary between art and copying? This question cannot be answered in a general manner, because it is almost impossible to draw a sharp line.

Against this background, a separate branch has even developed that provides expert opinions on the similarity of works – and thus analyses in terms of music theory what is a copy and what is not. However, the evaluation of the legal definition and differentiation of art and copy is ultimately left to the courts.

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