4th May 2023
Another flawed musical copyright case.
The news from the Manhattan court is that Ed Sheeran has won the latest case.
These cases are not about piracy and bootleg copies being made for sale.
These case are also not even about samples being lifted.
They are about mere chord progressions.
As Sheeran’s lawyer avers: “the letters of the alphabet of music”.
These are the cases that bring discredit on media and copyright law – and also perhaps show a misunderstanding of how music is composed and how music develops.
We should just wish that the very notion of bringing such flawed cases could themselves be subjected to the law of intellectual property.
And then potential plaintiffs could just be sent a “cease and desist” letter – and so be stopped immediately in their, ahem, tracks.
***
Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.
More on the comments policy is here.
People with an interest in how copyright is being used & abused might be interested to read “Chokepoint Capitalism” by Rebecca Giblin & Cory Doctorow.
Their argument is that most of the money made from copyright payments goes to the big players these days rather than the actual creators. They suggest possible fixes for that.
It’s quite clear that whoever instigated the case – notably (ahem) not the composer – does indeed know very little about musical theory and practice. Guitar chords (not the melody itself) are perhaps more dependent on both the key and a set of “rules” than other instruments. Stringed instruments like the guitar and the ukulele are usually strummed and so use all the strings at once to create a specific series of chords – a combination of 6 notes which go together according to the rules of harmony. The singer is accompanied by the guitar, which underpins the melody rather as an orchestra underpins the “tune” of a piece.
Chords cannot be copyrighted. Nor can chord progressions; most are very similar, even in different keys. If you can play 3 chords, you can play most songs.
Had Ed Sheeran used the same chord progressions AND an almost identical melody, that would be different. I suppose that would count as musical plagiarism!
Oh, that’s, ahem, excellent.
My father had on his bookshelves a copy of the Oxford Companion to Music, the original 1938 edition by the quirky music scholar Percy Scholes. It’s years since I’ve seen it, but I distinctly remember an article on litigation of this kind. Scholes’ advice, as a musician not a lawyer, to the composer accused of stealing someone else’s song was to demonstrate how commonplace the melodic line and harmony actually were and cite numerous examples to support this.
I was looking into the details of a popular song from around 40 years ago who was subject to a similar case and lost. I have been a musician for nearly half a century, and despite repeated listenings to the so-called original can find barely any trace of it in the prosecuted work.
The “original” was an obscure work from a different continent and language and unlikely to have ever been heard by the more famous song’s composer but yet attribution of the later work now lists both and royalties are split. A travesty.
I am reminded of the classic words of the late Eric Morecambe when he told Andre Previn that he was “playing the right notes – but not necessarily in the right order”. With the reported advances in Artificial Intelligence, future allegations of plagiarism and copyright are also likely to fail.
Well put, completely agree. Using the same argument put forward by Marvin Gay descendants would have put his body of work in question too.
It’s notable, I think, that many of these hopelessly specious claims are made not by the musician, but by the dead musician’s beneficiaries. It’s Marvin Gaye’s heirs that brought this dispute; Randy California’s heirs made the claim against *Stairway to heaven*.
The other claims are made by musicians nobody’s heard of hoping to cash in on the success of much better known musicians – this happened to Taylor Swift and *Shake it off*, for example.
My thesis is that these people are just bloody greedy and managed to find lawyers who were prepared to have a punt for the same reason.
Soon we’re going to have AI machines that can listen to 4 bars of music and then print out every instance from the history of western music that was 90% or more similar. Not sure whether this will make it clear that claims such as these are bullshit, or whether people will try to use it as evidence their music has been copied.
Compare and contrast:-
https://www.youtube.com/watch?v=bnwWhXKd2_k
https://www.youtube.com/watch?v=5-AF1T4OehM
Puccini sued and won.