The Cost of Creativity: How Flawed Copyright Rulings Can Harm Artists and the Industry
May 4, 2023, was presumably the happiest day of Ed Sheeran’s career year. That day saw the British singer walk out of the courtroom in New York, clothed in smiles and cloaked with dignity as he was freed of the shackles of what any musician or content creator dreads most: copyright infringement.
England’s golden prince of music was accused of copyright infringement in 2017 by the heirs of Marvin Gaye’s co-writer, Ed Townsend, three years after the former’s smash hit “Thinking Out Loud”. The closely surveilled suit has dragged on since then, culminating in the ruling of a New York-based jury rejecting the claim of the plaintiffs that Ed ripped off Marvin Gaye’s “Let’s Get It On” and putting the originality of the former’s work beyond doubt.
The sweet success registered by Ed Sheeran and his legal team in proving that the building blocks of music and content creation as a whole lie in the public domain is not ubiquitous.
In other words, others have not been so lucky.
Similar cases have seen verdicts go the wrong way, significantly altering the course of innovation in the music industry.
One such example was the famous “Blurred Lines” case, decided in 2015. The suit, which also involved Marvin Gaye’s estate, was targeted at Robin Thicke and Pharrell Williams on grounds of copyright infringement. Similarities between the collabo’s hit song “Blurred Lines” and Gaye’s 1977 hit, “Got to Give It Up” were pointed out. The jury ordered the payment of $5 million in damages to Gaye’s estate – much to the bewilderment of many experts in the industry who saw many of the claimed musical elements as essential building blocks of music.
Ever since this iconic case, the trend has skyrocketed. The 2016 legal battle between the estate of Randy Wolfe (Randy California) and the legendary Led Zeppelin follows this trend.
“Stairway to Heaven”, the greatest rock and roll hit of all time, was accused of plagiarizing Wolfe’s band’s “Taurus”. Although the initial ruling was in line with the opinion of many industry experts – that the melodies and chord progressions of both songs bear no similarities – a three-judge panel were not satisfied with it and ordered a new trial.
Yet another instance of these verdicts hitting the wrong note is revealed in the court’s ruling on the “Dark Horse” case which temporarily dented Katy Perry’s immaculate songwriting image. The princess of pop and her collaborators were accused of ripping off Marcus Gray’s (Flame) 2008 song “Joyful Noise” in their hit “Dark Horse” despite glaring evidence to the contrary. And although subsequent judgments sought to right the wrongs, the reputational damage had already been done, albeit temporarily.
Further examples on this subject would prove superfluous in establishing an obvious fact: decisions like these can have a significant impact on both the accused and the broader music industry.
It is a rule of thumb that certain elements of music remain in the public domain and are not the property of any individual. Ed Sheeran, together with his lawyer Ilene Farkas, spent hours proving so to the satisfaction of the court via guitar that the 1-3-4-5 chord progression was a mainstay of pop music. But sometimes, juries have seemingly overlooked this in favor of the overriding need to protect the rights of musicians. And although safeguarding the rights of artists is crucial, what is more pertinent is guaranteeing that verdicts are fair and accurate in order to avoid unfavorable outcomes.
Erroneous rulings like the above could set a dangerous precedent for music copyright law by unintentionally deterring artists from taking creative risks which inadvertently stifles creativity and innovation. Readers would be well to keep in mind that Ed Sheeran had previously vowed that he would leave the business if the Marvin Gaye lawsuit went against him. In his unembellished words: “I find it really insulting to devote my whole life to being a performer and a songwriter and have someone diminish it.”
Come to think of it. Had the jury erred in their ruling, we would have closed the chapter on one of history’s best-selling artists –150 million records sold is no joke– and most prolific songwriters. We would have missed out on hits like “Bad Habits”, “Afterglow” and “Visiting Hours”. Think of the many Ed Sheerans who have not been so fortunate and have taken the same vow the British singer did. Talents lost. Forever.
Think of the increased frustration and resentment others have felt having their originality and artistic freedom snatched from them –someone like Ed has been through multiple such lawsuits. The lost chances of collaboration between belligerents for mutual benefit is also a repercussion. For example, it is highly doubtful that we would be getting a Katy Perry-Marcus Gray collabo anytime soon after their legal tussle.
Furthermore, some artists have found themselves in financial ruin following damage reparations which have significantly hurt their careers and livelihood. For independent musicians who might lack the funds to launch a strong legal case to refute paying for damages, this can be very difficult. The aforementioned Blurred Lines case took a heavy toll on the losing parties financially with Thicke forced to sell his home to pay legal fees and Williams losing millions of dollars in royalties. The 2012 Pirate Bay case saw Peter Sunde file for bankruptcy due to the hefty fines imposed on him (in addition to being imprisoned).
For others, it is not so much the pay but the name that causes the ruin or resentment. The $2.78 million penalty Perry and her collaborators were initially ordered to pay were inconsequential compared to the emotional stigma of having one’s work tagged “copied”. The reputational damage for some might prove irredeemable –which may explain why so many opt to settle out of court and covertly add composers to the song credits.
Be that as it may, it would be a farce to say that correct judgements that fulfilled their purpose in protecting the rights of the artists aren’t abundant.
Factually speaking, an overwhelming majority of the verdicts on this issue have been positive –Ed Sheeran’s victory in last year’s suit over “Shape of You”, for example. But the very few that haven’t have had a profound effect on those on the receiving end and the music industry as a whole. One can even go as far as saying that multiple lawsuits against a particular artist is not unconnected with targeting and would inevitably wear him out and cause him to quit –which was almost the case with Ed Sheeran.
Readers should not get the wrong message out of this. Yes, certain elements of music and content creation as a whole always lie in the public domain but they should be handled with a touch of innovation and originality.
For us to keep gyrating and gallivanting to the sweet tunes of contemporary artists, the habit of throwing baseless accusations to pull down individuals in the industry needs to come to a halt. Only by doing so will we be able to safeguard their rights while nurturing a creative and innovative ecosystem in the music industry. This is applicable not only to foreign industries but to Nigeria as well.
I shall end with the judge’s words to the jury in Ed’s lawsuit: “Independent creation is a complete defense, no matter how similar that song is.”