Copyright Infringement or Creative Coincidence?

Jul 10, 2023 | Law Student Blog,

Copyright Infringement or Creative Coincidence?

by John Lee, University of Arkansas graduate and prospective law student

Every day approximately 120,000 new songs are released across streaming platforms. That’s more than 40 million songs each and every year! It’s no wonder then that it seems like every time a song becomes a hit it gets caught up in a copyright infringement lawsuit. Some of these types of suits have been coined “sound-alike lawsuits.” If you’ve read the news recently, you have likely heard that this very scenario played out with Ed Sheeran’s 2014 Grammy Award-winning song “Thinking Out Loud” and Marvin Gaye’s 1973 hit “Let’s Get It On.” To understand such cases, we first need to discuss some basic concepts in copyright protection and litigation.

Copyright Basics: What Does it Mean to be Original?
In order to secure a copyright, the creator of a work must meet the originality requirement. Not to be confused with the concept of novelty in a patent context, the U.S. Supreme Court has held that the copyright originality requirement “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 1991. From this perspective, it makes sense that many books, movies, and TV shows follow the same basic story arc yet don’t infringe earlier works and are entitled to copyright protection. Similarly, many of the most popular songs use the same basic compositional structure of earlier ones and are entitled to copyright protection so long as the later work was created independently, displays some identifiable creativity, and has been expressed in a tangible medium.  (Copyright protection does not protect abstract ideas, but rather the specific expressions of those ideas.) With music, it is commonly thought that copyright protection is reserved for lyric and melody, whereas the compositional components, e.g., harmonic progression, harmonic rhythm, time signature, key signature, tempo, basic percussive groove, dynamics, etc., are already in the public domain since they have been utilized in similar ways by composers for centuries.

If you know anything about music theory, this traditionally held view makes a lot of sense. In the Western music system, after all, songwriters only have 12 notes to work with. If you choose to write a song in a major key with no modulations, that narrows your choices even further to a mere seven unique notes and seven unique triad chords. And to complicate the matter even further, most songwriters, especially in popular music, that choose to write a song in a major key follow a basic chord progression that follows a tonic-predominate-dominate-tonic structure. That is a total of three chords to make up the foundation upon which a song is to be written.

Copyright Basics: What Is Substantial Similarity?
In a copyright infringement lawsuit, the plaintiff must prove that the defendant’s work is “substantially similar” to the plaintiff’s original work and thus establish factual copying. Factual copying means that the defendant did not independently create the work and instead directly copied the plaintiff’s original work. This is often established with circumstantial evidence since it is rather rare to have undeniable evidence of copying in the form of an eyewitness or a confession from the offending artist. In music, this usually means establishing that the defendant had access to the original work and that the two works are similar enough for a reasonable person to suspect copying.

Alternatively, the plaintiff could try to establish that the defendant’s work has “striking similarity” to the plaintiff’s original work. That is, the similarities are so extreme that they “can only be explained by copying, rather than by coincidence, independent creation, or common source.” Selle v. Gibb (7th Cir. 1984).  By establishing such striking similarity, the plaintiff can demonstrate that the similarities are proof that factual copying took place. If the plaintiff can do either of these two things, they have a good chance of winning their case.

Recent Case: Griffin v. Sheeran
In Griffin v. Sheeran, the plaintiffs claimed that the harmonic rhythm and chord progression in Ed Sheeran’s song “Thinking Out Loud” are “substantially and/or strikingly similar” to those in the song “Let’s Get It On.” In making this claim, the suit was squarely focused on the compositional elements of the two songs rather than the traditionally protected elements of melody and lyric. In essence, this lawsuit claimed that the harmonic and rhythmic components of “Let’s Get It On” are the creative property of the plaintiffs, and that Sheeran’s “Thinking Out Loud” copied these components.

It is impossible to understand why the result of this suit in New York federal court was so important without a basic familiarity with the earlier controversial outcome of a similar lawsuit in California federal court involving the musicians Robin Thicke and Pharrell Williams’ song “Blurred Lines” and another Marvin Gaye hit “Got to Give It Up.” In that suit, there was a similar claim that the compositional elements of “Blurred Lines” copied those in “Got to Give It Up.” In the “Blurred Lines” case, the jury sided with the Marvin Gaye Estate, awarding it nearly five million dollars as well as 50% of all future royalties accrued by “Blurred Lines.” On appeal, the Ninth Circuit Court of Appeals upheld the jury’s verdict, citing settled procedural principals. The dissenting opinion offered a stark warning, however, with Judge Jacqueline Nguyen stating that by affirming the jury’s verdict, the Ninth Circuit had essentially allowed the Gaye Estate to do something unprecedented in U.S. copyright law: to “copyright a musical style.”

In this context, the Griffin v. Sheeran suit was seen as one of the first significant tests of the ruling in the “Blurred Lines” case. In the case against “Thinking Out Loud”, the plaintiffs argued that the unique combination of chord progression and harmonic rhythm in “Let’s Get It On” was intrinsic to the creativity of the song and thus owned by them. In order to establish factual copying, the plaintiff pointed to a video of Ed Sheeran playing “Thinking Out Loud” at a concert and smoothly transitioning into “Let’s Get It On” without changing the underlying chords. They argued this was undeniable proof that Sheeran knowingly copied the song. The defense argued that these elements were not unique to “Let’s Get It On” and were in fact basic compositional tools. In helping to make this defense, Sheeran pulled out his guitar and played a medley of several songs utilizing the same basic chord progressions and harmonic rhythms to argue that the video was not an admission of guilt, but rather a consequence of popular music using established songwriting formulas across time.

The jury sided with Sheeran. According to its ruling, Sheeran created “Thinking Out Loud” independently. Under this view, any similarity between the two songs was a matter of coincidence. Many within the music industry were relieved at the verdict upholding traditional ideals of copyright protection in music. The fear that songwriters would have to worry that every decision they made had been done before and therefore could potentially create liability was eased.

Copyright protection is incredibly important to uphold creative rights of all kinds. Without these protections, it would be impossible for songwriters, authors, painters, and their ilk to build careers sharing their creativity with the world. However, the decision in Griffin v. Sheeran reminds us that copyright protection has its limits, and these limits allow creatives to independently create works without burdensome restraints being applied to every creative decision. The next time you hear two songs that sound alike, before jumping to a conclusion, ask yourself, “Is this really copyright infringement, or just a creative coincidence?”

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