Viewpoint: Have UK songwriters got to give it up?

Viewpoint: Have UK songwriters got to give it up?

What do Ed Sheeran, Taylor Swift, U2 and Mark Ronson have in common? They have all recently been sued in the US for plagiarism in what appears to be part of the aftermath of an extremely controversial US decision against Robin Thicke and Pharrell Williams.

In that decision, it was held that the No.1 hit Blurred Lines infringed the copyright in Marvin Gaye’s Got To Give It Up.

The verdict was controversial because, whilst it was clear that Blurred Lines was influenced by the Gaye classic, it was less clear to the seasoned copyright expert that the song substantially copied Gaye’s work (a key part of the legal test).

Whilst that case goes to appeal in America, copyright claimants appear to have become newly emboldened - making claims and allegations that they perhaps would not have had the pluck to make before.

Likewise, whilst some (such as Led Zeppelin in respect of Stairway To Heaven) will always be prepared to roll the dice and defend infringement claims against them to the bitter end, many defendants seem more open to agreeing hasty settlements to brush matters under the proverbial carpet.

Is this new trend simply a sign of the times or could it be the result of a blurred line between inspiration and infringement under US copyright?

Whilst the true effect on the music industry of this surge remains to be seen, one immediate question is: are UK copyright owners about to join the party and take up arms?

When the House of Lords handed down the final ruling in relation to Matthew Fisher’s claim to have written a part of A Whiter Shade Of Pale, many felt that that case might open the floodgates to claims in this country (after all, that claim was started 38 years after the song was written).

The fear did not however turn into reality and there is good reason to think that, once more, the courts here are not about to be deluged with claims.

Unlike in the UK, US copyright infringement cases can be heard by a jury. This means that, instead of legal analysis and judicial reasoning, a decision as to whether there has been copying is decided by a ‘lay listener’.

Not only are jurors very unlikely to be expert musicologists, but differing views, press opinion or even simple misunderstanding could play some part in the decision making process: entirely different from the English system.

In the Blurred Lines litigation, the jury awarded an astonishing $7.4m to Marvin Gaye’s family which was eventually trimmed down by the judge to $5.3m (still one of the largest music copyright awards in history).

The jury’s original damages calculation was found to have been a probable miscalculation and many commentators have suggested that the jury’s decision may have been swayed by Robin Thicke’s admission that he had repeatedly lied about having a part in writing the song (despite being a registered author), the fact that he had been under the influence of alcohol and drugs around the time of the song’s creation and the fact that, in a 2013 interview, when asked about the inspiration for Blurred Lines, he cited the “groove” of Got To Give It Up.

By contrast, the English courts have long established principles that determine a successful claimant’s entitlement, whether to damages or an account of profits, and broadly speaking these remedies do not produce awards of the magnitude the US courts have recenly been handing down.

In UK copyright infringement cases, the judge will consider whether a substantial part of the work has been copied. ‘Substantial’ is, as a general rule, a reference to overall quality as opposed to quantity.

In fact, UK judges have been careful to point out that any analysis of the comparisons between two pieces of music to establish whether there has been copying must ensure that adequate importance is placed on the differences between them as well as the similarities.

Since the Blurred Lines case, it seems that, for US claimants, such a rule may be subject to flexibility. This is not the case in the UK and is likely to deter potential UK claimants with less clear cut cases who see the pot of gold awards available in America.

Another reason why copyright claims are thinner on the ground in this country is that UK lawyers are duty bound to the court to ensure that litigation is the last resort.

Adequate attempts to resolve matters must be made before claims are issued and failure to comply puts claimants at risk of adverse costs orders. Consequentially, fewer claims actually reach trial.

Whilst the floodgates may have been opened in the US, given the issues above (and others), until a similar Blurred Lines decision is made under UK law, it seems unlikely that the UK music industry needs to panic just yet.

That said, it would be foolish not to keep a firm eye on developments this side of the pond.

Story By: Steven Tregear (Partner) and solicitor Victoria Armstrong, Russells Solicitors

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