Partner Nick Eziefula examines key principles in high-profile music copyright claims, such as the recent Dua Lipa and Ed Sheeran cases, in Metro.
Nick’s comments were published in Metro, 9 March 2022, and can be found here.
What might these two lawsuits about "Levitating" mean for Dua Lipa? What are her options and what would you advise? Ed Sheeran recently gave testimony himself - is this a good idea generally?
"Cases like this are common. The old saying rings true: “where there’s a hit, there’s a writ”. A few years ago, Marvin Gaye’s family successfully claimed copyright infringement against Robin Thicke and Pharrell Williams over the hit Blurred Lines. Many felt the case might open the floodgates to similar claims, blurring the line between inspiration and infringement. There have been many such claims since, such as these claims against Dua Lipa.
"Dua Lipa and her team will most likely be taking guidance from expert musicologists as to whether there is an objective similarity between her songs and those alleged to have been copied, and whether substantial copying took place. These are complex technical questions that involve both music theory and copyright law concepts.
"In the US, cases of this sort are often ultimately determined by a jury at trial. In that situation, giving testimony oneself (as Ed Sheeran appears to be doing) can be powerful, where the defendant’s personal appearance is likely to win the confidence and support of the jury. But in some cases, it can have the opposite effect – some felt that Robin Thicke’s testimony in court in the Blurred Lines case did not endear him to the jury."
We've seen a lot of copyright lawsuits over popular songs recently, especially in the UK, against artists like Ed Sheeran and Sam Smith. How is it decided if an artist has plagiarised and how can they defend themselves?
"Under English copyright law, these cases come down to whether a substantial part of the original song has been copied. This is a complex technical question that involves both music theory and copyright law concepts.
"Where there has been no copying there is no infringement - actual copying needs to have occurred. If two people create very similar songs, but entirely independently of each other, without copying, there is no infringement. So sometimes artists accused of plagiarism claim to have independently created their material, alleging no knowledge of the original song.
"Use of someone’s unique musical composition without their permission is typically an infringement. However, nobody owns individual notes. Indeed, many musical themes that are present in multiple compositions (such as widely used chord progressions) are effectively the basic building blocks of music. These cannot be protected by copyright, as to do so would restrict musicians’ ability to create. So defendants in plagiarism cases often try to show that any similarities between the songs in question are based on generic elements that nobody owns.
"Also, copyright exceptions may permit the fair use of someone else’s song for the purpose of parody, pastiche, criticism or review. But this is often not relevant to cases involving well-known commercial pop songs, which will have been used far more broadly."
Have complaints like this become more common? If so, why might that be?
"There have always been cases of this nature. But in recent years, high profile successful claims (eg Blurred Lines - see above) may have encouraged claimants to come forward.
"The underlying law has not changed, but there does seem to be an increasing appetite for litigation."
Some artists straight away give writing credits to other artists, for instance Olivia Rodrigo giving Paramore a credit on "Good 4 U". Is this advisable?
"It is usually far more straightforward, and less costly, to head off a potential claim early by agreeing a deal, rather than running the risk of expensive and unpredictable court proceedings. Many of these cases settle early, or are avoided altogether by obtaining a permission and giving a credit and a share of the commercial upside."
