Copyright infringement claims in the music industry have become commonplace in recent years. In a world where a combination of the same twelve notes is used in most songs, and 120,000 new songs are being released each day, there are bound to be similarities. Many of these cases involve some of the most successful songs in any given year, which is very attractive to a potential claimant seeking a large amount in compensation.
These cases have the potential to damage the reputation of both the artist and the industry and cause unnecessary stress and expense for both parties in dispute. It has become essential for an artist to seek permission from the owner of the work they are taking inspiration from, or even an artist to whom they are paying tribute, to avoid any potential claims. However, there should be a balance between giving credit where credit is due and allowing artists the freedom to create and express themselves, without having the fear of an infringement claim in the back of their mind.
What constitutes copyright infringement
To prove copyright infringement in music, the defendant must have had access to the song, and their song is ‘substantially similar’ to the original work. This definition is quite vague, and to combat this, there are several musicological factors that will be considered when deciding a case. It must be shown that an original musical element from the song in question was taken, meaning it can’t be an element that has previously been used many times before, such as a generic beat. Usually, music experts known as musicologists will be brought in and will use their extensive experience to provide some insight into what constitutes an original element. They will have a deep understanding of chord progression, melody, structure and tempo and will refer to each of these factors when comparing the two songs. They will then give their opinion as to whether any original material has been copied.
As well as reports from musicologists, the court will consider the extent of the songwriters’ access and exposure to the original song. For example, if the two artists played at the same festival, or if one was the opening act for the other on tour, there is a good chance they would have heard the song. In contrast, if the song was written by a relatively unknown artist, it would be difficult to prove exposure. Although, with the rise of TikTok and the easy access to a vast array of music, it has become increasingly challenging to claim that you had no reason to have heard the song before.
Finally, the court may acknowledge the artists propensity to copy other work. If there have been multiple successful infringement cases against an artist, it increases the likelihood that the material in question was copied.
Position in the US
In the past week, Miley Cyrus and her record-breaking song, ‘Flowers’, have become the subject of a copyright infringement claim filed by Tempo Music Investments (Tempo). It is argued that there are ‘significant similarities’ between the songs ‘Flowers’ and ‘When I Was Your Man’ by Bruno Mars, in which Tempo owns a share of the copyright. Tempo claims that there is a resemblance between the chord progressions of the two songs, including the vocal lines, pitch ending pattern and the baseline structure. They also believe that there are obvious similarities between the lyrics of both songs. When ‘Flowers’ was first released, the chorus became an immediate point of discussion on social media, with fans and news outlets picking up on the fact that it seemed to be an answer to each line in the chorus of ‘When I Was Your Man’. The lyrics appear to be a response, for example, “I hope he buys you flowers” becomes, “I can buy myself flowers”. While the lyrics are obviously similar, the question is whether they constitute a copyright infringement.
Position in the UK
Here in the UK, in the recent case involving Ed Sheeran’s ‘Shape of You’, another record-breaking song, the court rejected the claim of copyright infringement. In this case, the court considered whether the post-chorus of the song which includes the lyrics ‘Oh I’ was copied from Sami Switch’s ‘Oh Why’. Musicologists gave evidence in the case and concluded that the similarities were merely a coincidence and there were ‘distinctive differences’ between the two songs. The judge also stated that similarities are only a starting point, and that the claimants had failed to prove the elements were deliberately or subconsciously copied. Despite Sheeran having been sued for copyright infringement twice before, the judge did not find that he had a propensity to copy other material. The songwriters denied ever hearing ‘Oh Why’ before, and there was very little evidence to contradict this. Upon winning the case, Sheeran stated that these types of claims are ‘way too common’ and ‘damaging to the songwriting industry’ and wishes in future that ‘baseless claims like this can be avoided’.
Potential outcome
Judging by the Sheeran decision, there may be a similar outcome for Cyrus. One would expect the court to find that there is no infringement, as the lyrics are not directly copied, and it is difficult to prove ‘substantial similarities’ in melody. However, the Cyrus case is unique in that the focus of the copyright is on the lyrics rather than the melody. There are several arguments likely to be made by the claimants. There will no doubt be musicological evidence submitted with regards to the chord progression. As well as this, the claimants may argue that Cyrus and her co-writers had access to ‘When I Was Your Man’, considering its success. Another potential argument is that Cyrus intended to take inspiration from the lyrics in the chorus.
The defence may argue against this and claim that while some lyrics mirror those in Mars’ chorus, the emotional context, melody and vibe of ‘Flowers’ is completely different. They may argue that ‘Flowers’ is a parody of ‘When I Was Your Man’. If someone creates a parody, they may rely on the fair use exception to protect themselves against infringement claims. However, this argument may be a stretch, as the definition of a parody is ‘an imitation for comic effect or in ridicule’, which doesn’t seem to apply here. However, this case has the potential to create a new category of parody, where a creative response to another song can be protected. They could put forward that the lyrics are a response rather than a copy, like rappers responding to each other in diss tracks. This is a common part of hip-hop culture, a genre in which there are rarely any infringement claims. Perhaps the same leniency should be given to the other genres. They may also mention the fact that Mars’ song was streamed over a million times following the release of ‘Flowers’, resulting in an increase in popularity for a song that was released over a decade ago.
It will be interesting to see the outcome of this case, particularly if the argument of fair use is put forward. If the decision favours Tempo, it could result in huge damages, given the songs success. If the case goes Cyrus’ way, it could make history and set a precedent for songs that are in response to others. This has the potential to change the position in the UK and would undoubtably have an influence on future cases. These cases have become prevalent due to the rise of recording technology, streaming services and widespread accessibility. As the industry is constantly changing, so must the law in this area, to prevent people from taking advantage of the opportunity to make money and to allow artists to reach their full creative potential.
Sarah Buckley, 2024