May 14, 2022 Musicology No Comments

Headlines galore: “Ed Sheeran blasts the culture of copyright cases!” and “Ed Sheeran will video his songwriting sessions from now on!” As has become the drill, reporting on these cases is about putting the latest high-profile lawsuit du jour in context with Blurred Lines and the copyright infringement cases that have followed. And I suppose I must as well, but differently, I think.

In terms of musicologist stuff, the analysis doesn’t change. Similarities probative of copying versus coincidence don’t change because of a wrong verdict. A wrong verdict should be an aberration, right? But Blurred Lines was soon followed by another bad verdict in Dark Horse. And arguably both continue to be, to some degree, the prologue for a wave of other cases of varying levels of merit. Dark Horse eventually got reversed. Led Zeppelin won the Stairway To Heaven case. And now Sheeran has won here. So as we’re seemingly determined to do, we can gradually feel soothed that the “climate of fear” that songwriters have complained about since Blurred Lines is dissipating. Still, like it or not, collectively, there’s increased cost and risk not just to the Ed Sheeran’s and Dua Lipa’s of the world, but to anyone who publishes music. So we should keep trying to reestablish the norms. This verdict is a considerable step in the right direction.

Congratulations to the judge, Antony Zacaroli. The judgment is thorough, and he certainly does his part to set us on a better course. He concentrates not on whether the two works have notes in common, (they do) but on whether the commonalities were attributable to copying. One of the last points he makes sums things up a bit. About “Shape of You” he writes:

“The use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it”. 

I think he’s probably right. The “Oh I Oh I” melody in “Shape Of You” is the first four notes of a scale, and the rhythm is simple and static; it’s just straight eighth notes (“quavers” as they may say in England). It’s probably not sufficiently original to either of these works to enjoy a lot of protection by copyright. But it deserves some. In a second I’ll mention the concept of “thin copyright.”

I think a key element missing here is that the “Oh I” material is not identical. The rhythmic placements are different, and the lyrics are different, OH YES, THEY ARE! They’re “Oh I” and “Oh Why.” Those two-word phrases mean different things. This matters in terms of thin copyright (which as I said, we’ll get to in a second. A few more seconds.)

To return to the judge’s point though, it’s unnecessary to fully dismiss mere similarity to “Oh Why.” Some similarities count less. The material that is even arguably in common between these two works is, I’d agree, neither lengthy, complex, nor novel, and it’s not identical, so that’s a lot of the math that goes into a probability calculation that considers causality. Rather like the judge, I hope, I’ve tried to be generous and indulgent in considering the presumed arguments (I have to guess a little bit) in the case because that’s the process that gets at the truth, and it’s how I teach. But all the similarities we looked at between Oh Why and Shape Of You, if I recall correctly, could be attributed to coincidence because of the relatively brief, simple, and common characteristics of the shared material. Not to put words in the judge’s mouth nor pen, but where you have short, simple, common, you increasingly need that “identical” part to be swayed toward copying as the explanation. That’s one aspect of so called “thin copyright,” which is, AFAIK, not actually a part of copyright law, but comes up a lot in court. “Thin copyright” is the little bit of protection afforded to something that is not wholly original (what ever is?) but has as they say a “modicum” or more of creativity. It therefore gets a modicum or more of protection by copyright. But again, the math, in order for one to infer copying, the copy has to be that much more identical.” “Oh Why” is not “Oh I,” and the rhythms are different.

But let’s touch upon the remarks from Sheeran afterward and consider another factor in all this. “Sheeran Slams The Baseless Lawsuits” types of headlines came after he posted a video in which he said, “…I feel like claims like this are way too common now and it’s become a culture where a claim is made with the idea that settlement will be cheaper than taking them to court, even if there’s no basis for the claim.”

Okay, he’s entitled to that. I certainly sympathize with him on most of these cases, and he gets sued a lot.

And he’s correct when he says, “There’s only so many notes and very few chords used in pop music, coincidence is bound to happen.” Yes, coincidences such as the lyrics “Oh I” and “Oh Why” sung upwardly across a minor pentatonic scale are bound to happen. More math.

But on the other hand, the 12 notes and the 60k new tracks a day on the internet don’t absolve anyone. Similarity that is probative of copying, cannot be reasoned away by waves of new music posted to Spotify every day or by there being only twelve notes. Not necessarily. Moreover, the music industry needs to reckon with the fact there’s also a culture in pop music creation that is churning out songs that are simpler, more repetitive, and therefore necessarily more derivative and yes, more similar than ever. You still need to look at the notes. Musicology needs to adjust and account for it. So do the courts. And it’s gonna be a process.

Written by Brian McBrearty