It used to be uncommon to hear about artists suing one another for copyright infringement. That was until the 2012 copyright infringement case, where Marvin Gaye sued Robin Thicke, Pharrell Williams, and T.I. over claims that Thicke’s hit song “Blurred Lines” infringed on Gaye’s classic 1977 hit song “Got to Give it Up.”
In recent years, the increase in streaming services like Spotify and YouTube and the involvement of larger teams of songwriters for popular tracks has resulted in a significant uptick in high-profile copyright infringement lawsuits.
What is Copyright Infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the copyright owner's permission. This can include using a substantial portion of the original work or copying its core elements, even if the infringing work is not identical to the original.
While the roots of copyright can be traced back to the 1700s in England, in the United States, copyright law is established in the Constitution. The Constitution assigns Congress the explicit power: To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article 1, Section 8, Clause 8 (the Copyright Clause).
In the context of music, copyright infringement can arise when a song incorporates elements of another song without permission or when a cover version of a song is created without obtaining the necessary licenses. Infringement generally requires two elements, as noted in Cambridge Univ. Press v. Patton: 1) the reproduction of a work that is protected by copyright, and 2) the replicated portion of the work constitutes a "significant portion" of the original.
Current Issue in the Music Industry
A Manhattan jury decided on Thursday that Ed Sheeran’s 2014 hit “Thinking Out Loud” did not unlawfully infringe on the copyright of Marvin Gaye’s classic 1973 song “Let’s Get It On."
The heirs of Ed Townsend, the songwriter behind "Let's Get It On," sued Sheeran for copyright infringement in 2017, contending that “Thinking Out Loud” copied the “heart” of Gaye’s song, including its melody, harmony, and rhythm. However, they were unable to demonstrate that Sheeran, his label Warner Music Group (WMG.O), and his music publisher Sony Music Publishing had violated their copyright claim to the Gaye composition.
With the rise of digital streaming and the ease of access to vast music libraries, the issue of copyright infringement in the music industry has become increasingly complex and contentious. As a result, copyright law and licensing agreements have become increasingly important for musicians and industry professionals to navigate and understand.
While copyright laws primarily safeguarded lyrics and melodies in the music industry, the copyright lawsuit between Robin Thicke and Marvin Gaye escalated matters by implying that the more abstract qualities of rhythm, tempo, and even the general vibe of a song could also be subject to protection, thereby allowing for the possibility of a song being sued for feeling like an earlier one.
Two frequently cited arguments are that plaintiffs in copyright infringement cases tend to focus on megahit songs because they recognize where the profits lie. The other is that given the vast amount of music being produced today and the fact that songs often rely on familiar structures and uncomplicated, memorable melodies increases the likelihood of unintentional similarities occurring compared to other art forms.
Possible Solutions
Although larger record labels may have the financial resources to retain musicologists to review new releases for possible copyright violations, smaller artists who may not be able to afford this expense are resorting to a proven method of protection: insurance.
Insurance can be especially useful for smaller record labels, independent artists, and producers who may not have the resources to hire legal experts to defend them in court. However, it's worth noting that insurance policies can vary in terms of coverage, and some may have exclusions or limitations that could impact their effectiveness in certain situations and may make them more vulnerable to being at the forefront of being sued.
Copyright remains crucial in certain ways as it safeguards musicians against outright plagiarism of their work. Nevertheless, the current usage and interpretation of copyright in the music industry appear to be at odds with its fundamental objective of promoting innovation and progress.
The legal framework surrounding copyright infringement in music requires a reassessment to prioritize the role of musical expertise in making future decisions of whether the two aforementioned elements of determining copyright infringement are required to prove copyright infringement is truly present in the accused work.
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