Ed Sheeran is a Grammy-winning artist known for his hit songs such as “Thinking Out Loud” and “The Shape of You.” Sheeran has accrued a great deal of wealth and as a result seems to be a good target for copyright trolls, litigious entities or individuals that litigate large amounts of copyright infringement cases with often baseless claims in the hope for a settlement. Ed Sheeran is a well-known artist and as such, he is in a financial situation to settle lawsuits rather than go through the litigation process.
What can be Copyrighted?
Copyrights cover works that are fixed, original, and made with a minimum level of creativity. In Feist v. Rural, the Supreme Court has said that to be minimally creative it needs to have a “spark” of creativity. This means that a copyright can’t just be an alphabetized list as in a traditional phone book.
The copyrighted work also needs to be fixed in some tangible medium, meaning the work has to be recorded in some fashion. An improvised jazz performance that isn’t recorded in any form cannot be copyrighted for this reason.
Finally, a work of art must be original to the creator. This means that you are the actual author of the work, and you did not copy it from someone else. You can’t copyright works stolen from someone else.
How Does Someone Infringe?
If an artwork meets all of the above requirements, then the artist has legal protection for his artwork. This legal protection gives the artist certain rights, such as reproducing the work, producing derivative works, and distributing copies of the work.
Before enforcing a copyright, the owner must register their copyright with the Library of Congress,. After that, a lawsuit may follow for violating any of the exclusive rights of the copyright. These rights, as described in section 17 of U.S. code § 106, include the right to reproduce the copyrighted work in copies or phonorecords, to prepare derivative works based upon the copyrighted work, to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending, and in the case of sound recordings, right to perform the copyrighted work publicly by means of a digital audio transmission. For the copyright owner to prevail, it must establish infringement of one of the 106 rights. A defendant could be infringing one of these rights by either a direct admission of copying the work or an inference of copying. If there isn’t direct copying of the copyrighted work, then the court will then use a two-part analysis to infer whether an infringement has occurred if they determine: 1) that the defendant had access to the plaintiff’s work and 2) that the defendant’s work is substantially similar to protected aspects of the plaintiff’s work.
Let’s look at some of Ed Sheeran’s recent lawsuits to see how this two-part analysis works.
Ed Sheeran’s Recent Trouble
Ed Sheeran defended the originality of his music in a lawsuit in 2018 in relation to his song “Shape of You” which resulted in Sheeran’s favor on April 6th 2022. Sheeran was accused of stealing the refrain “Oh I” from another English singer’s song “Oh Why” by Sami Switch. This case was actually filed in the UK. As a result, the guidance and law behind the copyright infringement claim could be very different and the resulting $1.1 million verdict in favor of Sheeran could have been made using a different analysis.
A US Analysis of the “Shape of You” Case
Even though the “Shape of You” case was filed in the UK, let’s take a look at it from a U.S. point of view. Again, the standard in the United States for copyright infringement is to determine if any of the 106 rights of the copyright holder have been violated, if the infringing party had access to the plaintiff’s copyrighted work, and if the infringing party took copyrighted material from the holder.
Sami Switch claims that his rights were violated as Sheeran copied sections of his song “Oh Why” to create the Sheeran song “Shape of You.” Switch contended that his song came out in 2015, before Sheeran’s song in 2017. In addition, the song “Oh Why” was released on digital platforms that could be readily used by the public. This means Sheeran likely could have accessed Switch’s song in the two-year period before he produced “Shape of You.” This means the first step of the indirect copying is satisfied, Sheeran stated that he never heard “Oh Why” by Sami Switch and even if he did, the song lyrics are very different. Despite the statements of Sheeran, he had definite access to the song, and he was capable of hearing the song.
The issue then is whether Sheeran’s song copies the Sami Switch Song. As someone who doesn’t write music, the songs sound very similar to me. The refrain from Sheeran’s song seems very similar to the “Oh Why” sections of Sami’s song. However, in the UK court case they go through the similarities and differences of the songs using two music experts in paragraphs 33 to 37. The “Oh I” phrase and “Oh Why” hook sound very similar and the tune in each song comprises the first four tones of a rising minor pentatonic scale. A major difference is the “Oh” section of “Oh I” in “Shape of You” is sung in tune with the beat of the song while “Oh Why” adds emphasis to the “Why” section that contributes to the somber theme of the song. The court goes further into the minute details of each song but these traits were the most important for analysis.
The other issue is whether a melody used in a song is enough to show that improper appropriation of Switches song. First, the words “oh why” or “oh I” present in the songs are slightly different, but the overall sound of the words are the same. Next, the refrain is very brief in the Sheeran song where the “Oh Why” melody of the Sami Switch song reoccurs throughout the song and leads into the fundamental question present in the song. Finally, Sheeran presented evidence in the case that he used the same pentatonic scale in prior songs before the Sami Switch song came out and that other songs share the same melody. To summarize, there are compelling differences between the singing sections and the pentatonic scales that are similar do not represent compelling evidence that the melodies are substantially similar. I don’t think the case would have succeeded in the United States, but it’s interesting to think about and is a good primer for the next case.
Structured Asset Sales V. Ed Sheeran
Sheeran defended his music again in another copyright claim in 2018. The claim was lodged by a company called Structured Asset Sales (“SAS”), which purchased a portion of the estate of Ed Townsend who co-wrote the Marvin Gaye song “Let’s Get It On.” Ed Sheeran has argued that the Marvin Gaye chord that is the subject of the lawsuit is not distinct or substantial enough to warrant copyright protection as a matter of law. The court, however, disagreed moving the case forward for a jury trial in the near future (once a date is decided).
The Estate of Cherrigale Townsend v. Ed Sheeran
The SAS case isn’t the first time Ed Sheeran was sued for copyright infringement related to Marvin Gaye’s song. In 2016 Sheeran was sued by the Cherrigale Townsend Estate for copyright infringement related to the same song “Let’s Get It On.” The Estate holds two thirds of the interest of the musical composition while SAS owns one third. However the lawsuit seems dead in the water because evidence vital to the plaintiffs case was dismissed in limine (as a preliminary matter before trial).
The Townsend estate only has rights to the musical composition of the song and not the recording of Marvin Gaye’s performance. Despite the estate’s ownership of the musical composition, the estate used a recording of a performance by Marvin Gaye as evidence of copying on the part of Ed Sheeran. Copyright protection can exist separately for a musical composition, i.e., the sheet music representing a song and a sound recording of the song. A party can have the rights to both the sound recording and the musical composition of a song. However, that is not the case for the Townsend Estate, which owns just the copyright in the composition, and not Marvin Gaye’s performance.
While the subject of this case is the musical composition, the estate is arguing to compare the recording to Ed Sheeran’s song “Thinking Out Loud.” The reason behind this is the strongest evidence that the “heart” of “let’s get it on” was copied by Sheeran is the presence of musical elements from the recording in the Sheeran song. However this does not support infringement of the composition which is separate from the recording and the 9th circuit court recently decided that copyrights before 1976 still have to follow the same evidentiary standards of copyrights under the 1976 Copyrights Act. The estate does not have rights to the recording, and it is not the subject of the case. The added elements of the recording are not present in the composition. The similarities of the recording to Sheeran’s song cannot be used to show the composition is similar when those elements are not present. The court did not allow the use of the recording as direct evidence and the case has not had any recent updates since the motion was approved by the court.
Structured Assets Sales: Legitimate Litigant or Copyright Troll?
If the Estate of Cherrigale Townsend (which holds two thirds of estate interest) couldn’t succeed in its case, you are likely wondering how Structured Asset Sales LLC was able to get its case to trial. Well, after the estate failed to proceed with its lawsuit, SAS acquired the rights (paragraph 2 of the record) to the recording provided as evidence in the Cherrigale case. As such the copyright claim now is based on the recording of “Let’s Get It On” rather than the composition. The registration lists Gaye and Townsend as the authors with a publication date of January 1st, 1978. This bolsters the SAS case as many of the argued similarities are present in the recording based on artistic liberties of Marvin Gaye that aren’t present in the sheet music.
The question then becomes can Sheeran convince a jury that just because the songs share a chord or other harmonics, that doesn’t mean he is guilty of copyright infringement? Sheeran filed a motion to dismiss arguing that the current case is duplicative of a prior case filed by SAS. However, we just discussed that the current case now involves the recording as well, and the judge dismissed the motion. Ed Sheeren will likely have to show that the elements of the Gaye song are more generic musical elements or otherwise argue that his use was fair use of the copyrighted material.
A fair use defense is a possible defense based on the purpose of the use, whether the work is transformative, the nature of the copyrighted work, and the substantiality of what was taken. In this case the purpose of the use is for profit or financial gain which favors the plaintiff. It’s arguable whether transformative work applies as the Sheeran song is different from the copyrighted song but has various similarities. The copyrighted work is very creative with artistic elements that made the song very successful. A substantial amount of the Gaye song is present in “Thinking Out Loud” to the point that Sheeran was able to seamlessly transition from his song to the Marvin Gaye song in a 2014 performance. I don’t believe an argument of fair use would be successful.
Sheeran has argued that other songs have the same sections of Gaye’s song that could have inspired his composition and recording for “Let’s Get It On.” He pointed to songs that came out before Gaye’s song that had the same artistic elements, like “Since I Lost My Baby” by the Temptations. If Sheeran can show that the inspiration for his song came from another source, he may be able to prevail in the pending trial. I believe the case favors Ed Sheeran, but this is just one of many cases against Sheeran and it likely won’t be the last.
Aside from works of art in the public domain, copyright protections make it seem nearly impossible to avoid unintentionally copying a feature of another song. Copyrights encourage creative works of art by protecting the rights of artists, but the existence of copyright trolls can also hinder the production of creative works. SAS is an entity that purchases copyrights and other intellectual property for financial gain. I believe that this doesn’t follow the intention of copyright protections. The business model of SAS is to prevent others from producing music rather than producing music themselves or supporting an artist.Certain Judges have started to combat such cases but we will have to see if the trend continues.
Loyola University Chicago School