Hey everyone! I’m really looking forward to how this class will help me crack the confusing code that is the music industry.
9 months ago, I remember seeing an article about how Ed Sheeran “pre-emptively suing Sami Chokri and Ross O’Donoghue in 2018” asking the court to declare that he (with his song Shape of You, 2017) had not infringed their copyright in their 2015 song “Oh Why”. I find the concept of pre-emptively suing for a declaration as a legal strategy to quash later attempts to be quite interesting; while it could be a powerful tool to protect meritous IP claims, I could also see it as being a tool to stifle public participation/hush meritous criticism wherein larger artists scare smaller artists who might have legitimate IP infringement claims against them (I wonder if BC’s anti-SLAPP legislation would play a role in this case).
Ed Sheeran also posted this video where he states that there is a growing culture “where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no basis for the claim”. He adds that baseless claims are getting way too common and that “it’s really damaging to the songwriting industry” given that “there’s only so many notes and very few chords used in pop music”. There was also an interview with him discussing this court battle.
If that’s true—that there is a very finite amount of chords and notes that are used in pop music—is it in the public interest to have less stringent IP protections in the music industry?
I feel like I’ve had countless experiences where the beginning of a song plays and I start singing the lyrics to another song with a similar tune/melody. How can anything be protected while still protecting the public’s access to a wide area of music/creativity if we’re hearing similar sequences of chords and notes repeated in various iterations throughout the industry?
This all came up for me when I heard the obvious similarities between Bruno Mars’ song “When I Was Your Man (2012)” and Miley Cyrus’ new song “Flowers (2023)”. Not only do they sound very similar, she’s singing back what sounds like the female dialogue response to the same words in Bruno’s song. For example, Bruno says: “I should’ve bought you flowers, I should’ve held your hand” and Miley responds with “I can buy myself flowers…and I can hold my own hand”.
A fan went as far as to blend the two songs into one mix: https://www.youtube.com/watch?v=2V-Lka7d4sI.
So how can it be that some claims can win an IP court battle on a technicality that makes them vaguely similar even though a listener couldn’t have picked it out, while other songs that sound obviously similar/the same and even use the same/similar lyrics can get away without blame?
Here’s a list of some of the biggest music copyright cases in history; this list makes mention of sampling—another thing that I’m interested in figuring out how is legally possible.
I’d love to figure out how to legally walk the line between what is sanctioned (in terms of sampling music, playing with another artist’s lyrics, melodies/musical sequences etc.) and where the hardline of infringement would be in such cases. And more broadly, is it in the public interest to leave things more legally lenient? Or is it better for society to protect the authorship and artistry of those making these songs?
Communications Law