A costly infringement case may be pushing songwriters to consider legal options, adding credits and sharing royalties rather than litigating. Is it stifling creativity, too?
Have legal concerns grown so Thicke that songwriters find it’s easier now to just get Happy and + colleagues who seek credit because their works sound sort of similar?
Ed Sheeran—the singer, songwriter, actor, guitarist, and record producer—may have sent the music industry a strong message with his recent settlement of a copyright infringement suit over his hit song Photograph. In answer to 2016 claims by songwriters Martin Harrington and Thomas Leonard that they should be awarded $20 million from him because they say his song infringed on their composition Amazing (as recorded by Matt Cardle, the 2010 winner of The X Factor reality series), Sheeran, legendary for his mathematically signed albums, effectively replied: — .
He then apparently decided not to be ÷, and to just × the number of folks credited on his tune.
What’s going on—and was this part of a potentially −legal trend? Let’s get to the √ of this music industry development.
Songwriting credits are industry gold, determined in differing fashion but determinate in vital concerns ranging from royalties’ divisions to tax payments. They’re key, of course, in copyrights, so musicians and their representatives, especially their agents and attorneys, typically try to ensure everything’s straight with the credits early on. Sheeran’s Photograph, which he first said he wrote with Johnny McDaid, was a huge hit in 2014 and likely has earned him millions of dollars in royalties.
But in the face of the suit by Harrington and Leonard (a tip of the hat to the Hollywood Reporter for posting the papers online), the tune, instead, is now officially reflected in the BMI database as a product (No. 15327859) of four authors. While the terms of the settlement were not disclosed, a key component of the claims by Harrington and Leonard focused on the royalties, past and future, that they demanded that Sheeran and McDaid share from their multi-Platinum hit, which has sold in excess of 3.5 million copies.
Cases of lawsuits or quietly amended song credits—incidents involving not just Sheeran but also Sam Smith, Tom Petty, the Chainsmokers, the Fray, and TLC —are popping up and getting more attention of late.
Big case casts a legal shadow
They’re playing out, in legal terms, against the songwriter battle royale, the infringement dispute over the tune Blurred Lines. In that suit, the heirs of Motown icon Marvin Gaye prevailed in a claim against Robin Thicke, Pharrell Williams, and others, alleging that Thicke’s smash hit Blurred Lines copied Gaye’s 1977 chart-topper Got To Give It Up. That verdict left Thicke, Williams, and others on the hook for $5.3 million, as well as a share of ongoing royalties (thanks to ArsTechnica for posting the judge’s ruling).
The Blurred Lines decision has outraged many in the music community who argue that federal courts in Los Angeles misinterpreted the law, creating a new standard in which artists can be punished for being “inspired” by others’ works rather than rightfully being penalized if they outright copy them. In August, 2016, 212 musicians filed an amicus brief with the U.S.Court of Appeals for the Ninth Circuit, supporting Thicke et al in their request for an appeal. The brief states that: “In essence, the Appellants have been found liable for the infringement of an idea, or a series of ideas, and not for the tangible expression of those ideas, which is antithetical to Section 102(b) of the Copyright Act. Such a result, if allowed to stand, is very dangerous to the music community, is certain to stifle future creativity, and ultimately does a disservice to past songwriters as well.”
While the appellate court ponders whether to take up the Blurred Lines case in which the defendants recently filed their opening brief, it’s worth noting some other recent songwriting credits’ claims, including:
- Sam Smith (Stay with Me) and Tom Petty (I Won’t Back Down). After Smith broke out with his hit in 2014, discussions ensued with Petty and Jeff Lynne over their 1989 chart-topper and similarities between the two tunes. In 2015, Petty and Lynne were added to the writing credits for Stay with Me, and they will share in its royalties. Smith claimed he was unfamiliar with Petty’s song, a rock classic. The parties made it clear they had respect for each other and preferred an amicable settlement.
- The Chainsmokers (Closer) and The Fray (Over My Head). The Chainsmokers have ruled the charts over the past two years, with seven songs on Billboard’s Hot 100 chart. Their most successful ear candy, Closer, spent 12 consecutive weeks at No. 1 on Billboard’s Hot 100 chart. It originally was listed as written by the duo. But in September, members of The Fray, an early millennium soft rock outfit, mysteriously appeared as co-writers on the song (see BMI work No. 22361360). Why? It may be worth side-by-side listening to the piano part of Closer and The Fray’s 2005 mega smash Over My Head.
- TLC (No Scrubs) and—yes, again— Sheeran (Shape of You). Just weeks before he settled over Photograph, Sheeran found many fans comparing his monster smash Shape of You to a late Nineties staple No Scrubs by TLC. Sheeran’s cut has been amended (BMI No. 23527441) to credit No Scrubs songwriters Kandi Burruss, Tameka Cottle, and Kevin Briggs.
- Marvin Gaye (Let’s Get It On) and—yes, again, again—Sheeran (Thinking Out Loud) Heirs of Ed Townsend, who co-wrote the pop-soul super hit with Gaye, sued Sheeran, claiming his song lifted fundamental elements of Let’s Get It On. The case hit a bump in the road when a judge, who left the door open to a refiling, said key parties were improperly served.
It’s worth noting that, with Blurred Lines as a standing case, songwriters and other creatives may need to consider if they, too, might face hefty legal fees and judgments in credit-infringement disputes: Court papers indicate Thicke’s profit from the hit was $5.66 million, while Williams’ haul was $5.1 million. The Gaye family sought but did not get $3.5 million in lawyer and other fees—a request, still, that might give any artist the chills and deep thoughts about the advisability of going the + credit route, rather than fighting a lawsuit.