Sheeran vs Gaye — Another Copyright Lawsuit?
Following the lawsuit (failed) over “At the Shape of You,” Ed Sheeran must be getting rather fed up. Now, lawyers are taking him to trial over Thinking Out Loud, claiming it is a rip off of Marvin Gaye’s Let’s Get It On.
He is certainly correct to say that copyright claims are becoming far more frequent, even if most never reach court and the public is unaware of them.
The reason they don’t reach court is, of course, because sometimes an arrangement is come to, but mostly it is because there is no merit whatsoever in the claim.
I had one myself. A little number I put up on YouTube (a number that gained almost no plays like most of my offerings) was subject to a claim that I had ripped off a song that was not only by an artist I had not heard of, but it had no similarity in melody or chord structure or style in anyway much.
The claim had not been made by some aggrieved, unheard-of writer, but by a company who does this for a living. They use a scattergun approach with YouTube and randomly make hundreds of spurious claims on the hope that any advertising revenue will revert to them and their client. There are a lot of companies like this now.
Thankfully, in that case, I answered the query with not only a firm “not a chance, buddy,” but the copyright for my own work. For although it was new to YouTube, I wrote it forty years ago (about 38 years before they wrote theirs), and could prove it. Since much of this is automated now, or seems to be, I had no apology or formal response, the claim simply went away.
But why do these claims come up so often? And why has the judge in the Sheeran v Gaye case decided that it must go to trial and be heard by a jury?
I think it is worth noting that the claim has not been brought by the family and estate of Marvyn Gaye, but rather by investment banker David Pullman and a company called Structured Asset Sales, which has acquired part of the estate of Let’s Get It On co-writer, the late Ed Townsend who died in 2003. That doesn’t mean much, perhaps, but it is worth noting, nonetheless.
But I am not going to second guess what will be a messy and possibly faintly ridiculous trial, (and nor will the judge which is why he has chucked it at a jury), and nor will I look at any merits within the claim, nor make a point about copyright laws, royalties, or intellectual property. I will leave that for the poor jury!
So, are these cases really just coincidence or are they theft?
I seem to remember that Noel Coward (or someone of his generation) glibly commented that all possible note variations had run out in 1922, and therefore, everything else since is *cough* parody.
(If you know the true author of the comment or even the precise wording, let me know in the comments! I wouldn’t want to attribute it wrongly…)
In reality, it was probably long before 1922, since although the maths can come up with an astronomical number of variations among twelve notes (let alone a plethora of chord types and inversions), in reality, in “popular” (previously folk) music, we use very few of them. We use the “popular” ones, especially changes/modulations that people can remember easily and will be most instinctively attracted to.
(Humans are fickle listeners and we like our tunes to have a nice, comfortable logic about them. The same logic now, indeed, as in the sixteenth century or before. Greensleeves could easily have been written today)
Paradoxically, therefore, it is both coincidental and intentional that two songs may have a similar structure: coincidental because there was no intention to copy a particular song, and intentional, because all writers are dipping from the same limited pool of ideas and are fully aware that everyone else is too. Indeed, it can feel like a queue at a petrol station during a shortage.
My late father was a pianist/intelligence office/bank manager, an interesting combination, and he played all the hits of the 30s/40s/50s in a swing style — his style. When I was young, I was convinced that he could only play one song. Since he never sang the words, they all sounded remarkably similar.
So this idea of “coincidence” is nothing new and is based on some pretty logical, acceptable criteria going back a long time.
So, what happened in the good old days?
It depends how old those days are. Back in the 40s etc, publishing companies were powerful entities like they are now, and they sued based on the laws of the time.
Those laws weren’t always as tight and the lifetime of copyright (how long it can be claimed, normally a length of time after the composer’s death) varied around the world.
These days, it is almost universally 70 years after death of the composer, in the case of publishing rights (those are the rights covering the sheet music rather than the particular performance). I remember it changing in the UK. We had the odd problem of using “Land of Hope and Glory” for an ad because it was in the Public Domain (just over 50 years after Elgar’s death), and then had to withdraw it because the law changed to 70 years, and it was back in copyright!
International copyright treaties were almost non-existent and are a much more recent thing. A friend learned some years ago that a little pop tune he had written in the 80s had been covered and become a hit in Brazil (I think it was). Given the size of the population, that was a big deal.
He rang his agent. “We’re going to be rich.”
“From Brazil? They don’t care and ignore copyright treaties. We won’t see a penny.”
What about even older days?
If you go farther back in time, before most copyright or indeed publishing companies existed, (so before the Worshipful Company of Stationers with whom the afore-mentioned Greensleeves was registered in 1580), and before the first copyright act in 1710 (called the Statute of Anne), then the situation was different.
The way to prevent someone standing up in the public arena and accusing you of “plagiarism,” and therefore ruining your reputation, was to simply call your version a “variation.”
Since without publishing ownership, you could claim this without having to cough up any money or percentages, the use of “variations,” or “based on,” or more openly “to the tune of” were far more common than now.
There were no records or record shops to sell your “hit” in large quantities, and no pop charts to show your success. Any money you made was through performances.
If someone else performed your little folk (pop) song, you didn’t earn a penny. But then, you didn’t pay for performing theirs either. Swings and roundabouts…
Back to now…
Can we surmise that, at least partly, dishonesty either by opportunist publishers and their agents, or by writers nicking ideas, has become more of an issue since there is now plenty of legal framework to use and even more financial incentives?
Of course we can. Why else would they do it? It is hard to see that any of this is really because of hurt feelings. It is all about money!
Choose your corner and shout for your hero is all that is left.
At least in that way everyone appears to be singing from the same song sheet without having to get permission to first.
Oh the irony!
If you would rather have heard this post than have read it (a bit late now), do me a favour and click on the pod cast link at the top and not the “Listen” link supplied by Medium. Honestly, AI voices are the pits!
Me In The Middle is all about the majority. Not the Left, nor the Right, not the great protesters, marchers, or campaigners. It is about being in the Middle of everything. It is also available as a podcast on Spotify and other platforms.
