British musician Ed Sheeran has recently found himself embroiled in various copyright disputes before the US courts and those in England and Wales.

Judgment was handed down in April 2022 in the case of Mr Edward Christopher Sheeran MBE and Ors -v- Mr Sami Chokri and Ors [2022] EWHC 827 (Ch) [2022], where he succeeded in obtaining a declaration of non-infringement of the other side’s copyright.

In the US, in a judgment which was handed down in May of this year, Sheeran succeeded in proving that he did not copy Marvin Gaye’s song ‘Let’s Get It On’ when writing his song ‘Thinking Out Loud’. Speaking to the press after winning, Sheeran expressed his frustration that defending copyright infringement claims has become a regular part of his job, saying that it is “mathematical” that songs will sound similar given the “four chords that get used in pop songs” and “60,000 songs get released every single day”.

With Sheeran’s statements in mind, the question is posed: when writing songs, how careful do musicians need to be to ensure that they are not infringing copyright in earlier written third-party songs?

Copyright law in the UK

In the UK, copyright law is primarily governed by the Copyright, Designs and Patents Act 1988.

S.1(1) of the act states that copyright is a property right which subsists in, inter alia, ‘original literary, dramatic, musical or artistic works’ and ‘sound recordings’. S.3(1) of the act defines a ‘musical work’ as a ‘work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’. The work must be ‘recorded in writing or otherwise’ for copyright to subsist (s.3(2) of the act).

For a work to be considered protected by copyright, it must be original. Recent EU case law has confirmed the test for originality (Infopaq International A/S -v- Danske Dagblades Forening [2009]; Cofemel Sociedade de Vestuario SA -v- G-Star Raw CV). This is a two limb test:

1. The work has to reflect the personality of its author, as an expression of their free and creative choices – an expression of the author’s own intellectual creation; and

2. The subject-matter must be identifiable with sufficient precision and objectivity.

Infringement under the Act

To infringe an existing work, a new work has to ‘copy’ it (ss.16(1)(a) and 17(2) of the act). ‘Copied’ means ‘reproducing the work in any material form’.

To amount to infringement, either the whole or a ‘substantial part’ of the work must be copied (s.16(3)(a) of the act).

This is a qualitative, rather than a quantitative test. Does the copied part contain elements which are the expression of the intellectual creation of the author of the work (Newspaper Licensing Agency Ltd v Meltwater Holdings BV [2011])?

Infringement or not?

Copying can be conscious or subconscious. If there is sufficient similarity between the two songs in issue and credible proof of the ability of the alleged infringer to have accessed the allegedly copied earlier work, then the evidential burden shifts to the alleged infringer to prove, on the balance of probabilities, that they did not copy.

Mere similarity alone will not be enough if the defendant is able to prove independent creation (i.e. that they did not copy). And even if copying did take place, there is no infringement if the copied part does not contain elements which are the expression of the intellectual creation of the author of the work. The courts in this country will not allow an artist to monopolise a generic, commonly used and unoriginal chord sequence. If that is all that has been ‘copied’, there is no infringement.

While we cannot comment substantially on US copyright law, one major difference between the countries is how such cases are heard. In the UK, a legally trained judge determines the merits of the case, while in the US, a jury decides on the merits. While jurors in the US are directed by a legally trained judge on legal issues, they could still be swayed by the emotion of the case, whereas perhaps a judge in the UK is less likely to be affected by such a factor when deciding on the merits.

It was reported that Sheeran played a ‘mash-up’ of around 60 songs using the same four chords during his recent US trial, in order to stress that what he had allegedly ‘copied’ from the earlier work were (as his lawyer put it) “basic musical building blocks that songwriters now and forever must be free to use”. If correct, then a judge hearing the case on the other side of the pond would likely have come to the same conclusion as to the allegation of copyright infringement.

Carl Steele is a partner and Chris Fotheringham is a solicitor at Ashfords.