When does a “Photograph” infringe copyright? The “Blurred Lines” of copying

11 Apr 2017

It has been reported that the musician Ed Sheeran has settled a copyright infringement claim concerning his hit song “Photograph”, brought by the songwriters Thomas Leonard and Martin Harrington who claimed that it infringed copyright in their song, “Amazing”.

In their claim brought before the United States District Court Central District of California, Southern Division, the songwriters argued that the chorus sections of “Amazing” and “Photograph” share 39 identical notes, meaning the notes are identical in pitch, rhythmic duration, and placement in the measure. 

They also argued that, additionally, the chorus sections of “Amazing” and “Photograph” share four substantially related notes, meaning the notes are the same in pitch, but not necessarily the same in rhythmic duration or identical placement in the measure. 

In total, therefore, the songwriters argued that out of the 61 notes in the chorus section of “Photograph”, 64% of the notes in the chorus section of “Photograph” are identical to the notes in the chorus section of “Amazing”. They also argued that approximately 70% of the notes are identical to or substantially related to notes in the chorus section of “Amazing”.

Claims of copyright infringement in musical works are fairly frequent and often pique the interest of the media and wider public due to their impact on popular culture. The Ed Sheeran “Photograph” case follows on the heels of the claim brought by the family and estate of the late Marvin Gaye, who successfully sued Robin Thicke and Pharrell Williams for infringing copyright in Marvin Gaye’s “Got To Give It Up” with their single “Blurred Lines”. This case is now under appeal.

Other songs which have been on the wrong end of copyright infringement claims include Men at Work’s “Down Under”, in which sections of the flute part of the recording of the song were held to be based on "Kookaburra", written in 1932 by Marion Sinclair. Whilst The Verve’s “Bitter Sweet Symphony” is based upon an orchestral version of The Rolling Stones' song "The Last Time". After the songwriting credits were originally only credited to The Verve’s Richard Ashcroft, they eventually reached a settlement on royalty payments and songwriting credits which resulted in Keith Richards and Mick Jagger also being cited as songwriters of “Bitter Sweet Symphony”.  

How is copying determined?

For copyright in a work to be infringed there must be an act of copying. Without copying, there can be no copyright infringement. 

The difficulty in most copyright cases, and particularly those concerning musical works, is how to establish that copying has taken place where there is no first hand evidence of the copying. 

The cases above have either been brought in jurisdictions overseas or have been settled prior to consideration by the courts. The law in England and Wales, is however, fairly settled on the approach that is to be taken and the courts have established the following stage by stage test in such cases:

  1. The first stage is to consider whether the Claimant copyright owner has established a clear inference of direct or indirect copying by reason of the similarities between their copyright work and the Defendant's work.
  2. Similarities which constitute the expression of ideas that have no connection with the literary, dramatic, musical or artistic nature of the work are to be disregarded.
  3. Similarities not excluded under (2) above but which are shown to be commonplace give rise to little or no inference of copying; the nearer a similarity approaches the strikingly original end of the spectrum, the greater weight it carries in supporting an inference of copying.
  4. If the Claimant copyright owner establishes a clear case of inferred copying, this may be rebutted by the Defendant's evidence of independent design. The stronger the case is on the face of it, the more convincing the Defendant's evidence must be to rebut the inference.
  5. If there is no finding of copying, there is no infringement. If there is a finding of fact that there has been copying, the next stage is to consider whether copying was done either in relation to the copyright work as a whole or any substantial part of it.
  6. There are two alternative approaches to the question of substantial part. The first is to disregard the Defendant's work and to assess whether the similarities from which an inference of copying was drawn constitute a substantial part of the copyright work. This is a qualitative, not a quantitative assessment. The second, which applies only in an instance of altered copying, is to determine whether the infringer has incorporated a substantial part of the intellectual creation of the author of the work. In many cases the difference between the two approaches to an allegation of altered copying may be limited.
  7. To the extent that it has not already been excluded under step (3), a commonplace similarity can in any event make no contribution to any substantial part of the copyright work alleged to have been copied since it is not capable of attracting copyright protection.
  8. Assessment of whether there has been copying of a substantial part of the copyright work is a necessary and distinct step in the determination of whether the Defendant has infringed. However, where copying has been established, on the facts it may be that this will almost inevitably lead to the conclusion that a substantial part of the copyright work has been copied. This may be influenced by the degree to which the finding of copying depended on the similarities between the two works.

The most important lesson for creators of all original works arises under (4) above and that is to make and keep clear records of the independent creation of their works. The more detailed and clear cut the evidence of independent creation one has, the greater the chances of being able to rebut an inference of copying a third party’s work should such a claim be made.

DMH Stallard have a dedicated team of intellectual property specialists who can advise on this and other IP related matters.

We shall be attending the International Trademark Association's annual meeting in Spain next month. To set up a meeting, please contact:

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