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Ed Sheeran Among the Latest Musicians Accused of Copying Australian Artists

Post Time:2018-02-08 Source:lexology Author:Lachlan Sadler and Miriam Zanker Views:

The Australian songwriting duo Vanda & Young are suing the Portland indie band Glass Candy in the Australian Federal Court, alleging that the song Warm in the Winter has breached their copyright as it contains a substantial part of John Paul Young's iconic song Love is in the Air, which was penned by the duo.

Meanwhile two other Australian songwriters, Sean Carey and Beau Golden, have filed a lawsuitin the New York District Court against Ed Sheeran, Tim McGraw and Faith Hill in relation to their collaboration The Rest of our Life, which the Australians allege copies their song When I Found You, performed by country music star Jasmine Rae.

These are the latest in a long history of copyright cases involving accusations of musical plagiarism.

Leave has been granted to serve Glass Candy in America

In the case of Boomerang Investments Pty Ltd v Padgett [2018] FCA 4, Justice Perram has granted Vanda & Young leave to serve court documents on Glass Candy in America, holding that there is a prima facie case that Warm in the Winter substantially copies Love is in the Air, based on the fact that the songs contain the same lyric "love is in the air" and evidence that "the subsequent chordal structure of both songs is the same".

With leave granted to serve documents outside the jurisdiction, it seems likely that the lawsuit will progress further.

A brief history of music copyright cases

Glass Candy, Ed Sheeran, Tim McGraw and Faith Hill join an illustrious list of artists sued for musical plagiarism.

The Beach Boys and Led Zeppelin have both settled similar infringement allegations out of court, although George Harrison was more inventive in mitigating a finding of copyright infringement in relation to My Sweet Lord by purchasing rights to the song he was found to have copied.

Radiohead's signature song Creep has been on both sides of accusations. In 1992 the band settled allegations that they had copied the song The Air That I Breathe by The Hollies, and in a reversal of fortunes representatives for Radiohead have recently accused Lana Del Rey of copying Creep in her track Get Free, although proceedings have not been issued.

One of the most impactful music plagiarism cases involved The Verve's smash hit Bitter Sweet Symphony, which featured allegedly unauthorised samples from an orchestral version of The Rolling Stones' The Last Time. The Verve settled the allegations and lost all songwriting royalties and publishing rights to the song.

That case makes the US$5.3 million in damages awarded against Pharrell Williams and Robin Thicke in 2015 for infringing the copyright in Marvin Gaye's song Got to Give it Up in their viral hit Blurred Lines seem comparatively light.

Music copyright cases in Australia and New Zealand

One of the most recent cases on this issue is from 2017, when Eminem was awarded NZ$600,000 in damages by the New Zealand High Court, which found that a song called Eminem Esque used by the National Party in a political advertisement copied a substantial part of Eminem's famous Lose Yourself.

Meanwhile the seminal Australian case on music plagiarism remains EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd [2011] FCAFC 47, where the Full Federal Court found that Men at Work copied parts of the Australian nursery rhyme Kookaburra Sits in the Old Gum Treefor their worldwide hit Down Under. Leave to appeal to the High Court was refused, and this remains the highest legal authority on this form of copyright infringement in Australia.

Forms of potential musical copyright infringement

These cases reveal a spectrum of potential music copyright infringement.

The most obvious instances are cases involving direct sampling, where audio segments from one song are transposed directly into another without the consent of the copyright owner, such as in Bitter Sweet Symphony. In such cases copyright infringement will rarely be in doubt, subject to questions of substantiality.

Sitting somewhere below this are songs which contain close replicas of musical arrangements used by other artists, again without the consent of the copyright owner. Eminem Esque for example was found to sound "strikingly similar" to Lose Yourself, and Down Under was found to contain a reproduction of a substantial part of Kookaburra Sits in the Old Gumtree, albeit interspersed with other music.

The least clear cases involve songs written "in the style of" another artist, such as The Beach Boys' track Surfin' USA (which settled out of court), which Brian Wilson says was intended as a tribute to Chuck Berry, or the Blurred Lines decision, where the finding of copyright infringement was based on "the vibe" of the song rather than a note-by-note comparison with Got to Give it Up.

These cases pose interesting legal questions. Given that there are only a finite number of notes, chords, and chord progressions, it seems inevitable that some songs may sound similar. The question of whether they are too similar, and when a tribute becomes an infringement, is ultimately a subjective one. George Harrison for example was found to have engaged in "subconscious plagiarism", even though the Judge did not believe that he had deliberately copied the earlier song.

In all cases, copyright owners also need to demonstrate that the author of the allegedly infringing song was aware of the original work. However with digital music libraries now at our fingertips, this is no longer as difficult to prove as it once was.

The new cases and future possibilities

While courts in various jurisdictions have held that all three forms of music plagiarism are impermissible, Australian courts have only considered the second category, with the Down Under decision involving a detailed note-by-note comparison of the two songs. It remains to be seen how Australian courts would approach a case resembling the Blurred Lines scenario.

As for where the cases against Glass Candy and Ed Sheeran et al sit, the best thing to do is to listen to the songs and judge for yourself, particularly given that, as demonstrated by the famous Eminem trial footage of the stoic courtroom listening to Lose Yourself, this is exactly what happens during these trials.

Given well-documented similarities that exist between countless pop songs, and the success to date of musicians enforcing their copyright, it is likely that many musicians and record studios are watching the developing legal battles with great interest.