Club Friday Q&A: An Entertainment Lawyer On Why Musicians Keep Getting Sued Over Copyright
By Stacy Lee Kong
Dua Lipa, Ed Sheeran, Taylor Swift—I don't know if you’ve noticed, but we’ve been hearing more and more about music’s biggest stars being served with copyright lawsuits in recent years. The latest is Sheeran, who won a copyright case in June, when a judge ruled that he and his co-writers “neither deliberately nor subconsciously” copied a lyric from a 2015 track by Sami Chokri and Ross O’Donoghue in his song, “Shape of You,” before finding out in September that a second copyright suit—this one alleging he copied elements of Marvin Gaye’s “Let's Get It On” in his song “Thinking Out Loud”—would be going to trial in the U.S. It made me a) realize I don’t know a lot about music copyright and b) wonder wtf was going on. So, I asked Paul Banwatt, a music lawyer, partner at Toronto law firm Gilbert’s LLP and author of The Music Lawyer, a blog that decodes exactly these issues, to help me understand. Here's what he said.
When you’re describing how music copyright works for a layperson, what do you say? Is it similar to book copyright?
Music copyright is painful, is the best way to describe it. And the reason actually has to do with book copyright. In my view, at least, the reason is that our entire system of copyright came about because people were concerned with the rights of book authors, and music copyright has been force-fit into a system of intellectual property protection that was really never meant for music. That’s why we talk about musicians, and the Copyright Act talks about authors. Copyright covers original works of authorship because there was a concern over whether authors were going to be able to reap the rewards of their authorship and, similarly, whether publishers were going to be able to make money.
Then the other problem is that even when copyright laws were updated to deal with issues that were coming up in music, they were updated at a point in time, and now we have new issues that have come up. So again, we’re trying to force-fit old ideas into modern-day realities. Some examples of that: Synchronization rights come from a time when there were silent films and people would synchronize the music or the soundtrack to the film that was playing, and it was like, Well, you have to pay somebody for that right to do that. Hence, synchronization rights. But now, the idea of video without music or without sound is not something we really contemplate as an issue. This is a long-winded way of saying music copyright is complicated.
But whenever you’re thinking about music copyright, a good place to start is to think about copyright in songs and copyright in recordings. Those two things underpin a lot of music copyright. There are other things to worry about—performances and things like that—but let’s start at that point: copyright in an underlying composition, like a song that you write, and then copyright in a recording of a particular song. Those two things can expire. For example, I could make a new recording of a Mozart symphony. I don’t have any copyright in the composition. Anyone else could make another recording of the exact same symphony. But, I have copyright of that new recording I made, so no one can copy my recording. When you’re thinking about these cases [against Sheeran, Lipa, etc.], usually what you’re talking about is infringement of copyright in the composition. In some cases, it’s in the recording, so, for example, somebody has sampled something without permission. But in a case where you’re just saying, ‘Your song sounds like my song,’ then you’re talking about that first issue—copyright in the composition.
Where do interpolations come in? When I’m looking at these high-profile examples of musicians that have been sued for copyright infringement—like Sheeran for “Shape of You” and “Thinking Out Loud,” Dua Lip for “Levitating” or Taylor Swift for “Shake it Off”—sometimes it’s an accusation of a lifted lyric, and I understand how that could be copyright infringement, but more often it’s about interpolations, which I find confusing because they aren’t direct copies of a recording, right?
So, that would be a situation where we’re not worrying about the recording; we’re worrying about the song. Let me give you an example. If I want to cover a song by Ed Sheeran, that engages certain kinds of copyrights. There are ways that I can actually make that cover and even potentially sell it because Ed Sheeran might be offering licenses to do that in certain circumstances. There are probably limits on what I can do—I might not be able to make a music video, for example, or license it to a commercial, but there’s usually a way, through agencies like Harry Fox, to make a cover song and put it on record. That’s one thing. Let’s say instead, though, there’s a horn part on that Ed Sheeran song that I want to put into my song. Now I need to sample it, and I might need a master license, which is a license to use that recording on my track. If I can’t get that, maybe I decide, ‘Well, I’ll just make it again myself, so I don’t have to get the recording.’ That’s an interpolation. But then the question is, was there copyright in the composition of that horn part? So, I might still have to go back and get some kind of right to use that underlying composition. Or I might not because I could argue that melody is not subject to copyright because it’s too simple or too short to be copyrightable. There are any number of arguments I might make.
Am I imagining it, or are there more of these lawsuits recently? I've seen some people speculate that the “Blurred Lines” verdict, where Marvin Gaye’s family won a $5 million copyright infringement lawsuit against Robin Thicke and Pharrell Williams, empowered people to file these types of lawsuits, at least temporarily, and Ed Sheeran has said they’ve become way too common, but I wasn’t sure if he was biased because he has had to deal with two of them.
It’s a good question. I don’t know if anyone has actually run the numbers, but I certainly would agree that I’m seeing more reports of this kind of litigation. Whether there’s just more interest in publishing stories about it or whether there’s actually more litigation, I’m not sure if anyone’s figured that out.
But, if there is more litigation, I think there are several possible explanations. One possible explanation is that [a lot of these cases are happening in the U.S., which is] a bit different than Canada. In the U.S., they have a number of different circuits, which are basically different courts that are responsible for different parts of the country. So, if you’re in California, you’re part of the Ninth Circuit, but if you’re in New York, that’s the Second Circuit. And what’s happened is that [copyright] law in some of these places has diverged, so it has become more attractive to be a plaintiff or a defendant in different parts of the country. That's because the test used to determine whether things are substantially similar can be a little bit different in each region—there are different hurdles you have to meet to make out a claim of copyright infringement or to defend against one. So, sometimes what happens is a plaintiff, seeing that the law in a particular circuit is favourable to them, might bring an action there. In other cases, someone who’s threatened with copyright infringement might proactively bring a case in a circuit that’s more favourable to defendants. In Canada, we only have one copyright law that applies across the country because our federal court is the same federal court whether you’re in British Columbia or Ontario, so we don’t have this forum selection going on in Canada that they have in the U.S. Though, this can affect Canadian artists because if you’re marketing your music in the U.S., then you could get sued in the U.S., just like any artist.
The other thing is that there’s just usually more money at stake in the U.S., right? If there are more lawsuits, it might be because people are starting to recognize the value of copyrighted music, particularly some of these songs that do really well on streaming platforms, on radio and in synchronization. There’s a lot of money potentially to be made from advertisements or placements in movies. You’re seeing that in different ways—musicians are getting paid these eye-popping amounts of money for the sale of their back catalogues, and similarly, when somebody’s feeling like they’ve been left out of their cut or that their rights have been infringed, I think there’s more incentive to go after that money.
What impact does that have on artists? Whether there actually is more litigation or whether artists just have the perception that there’s more litigation, is there a chilling effect on the way that they write songs or the way that they sample?
I mean, that’s so hard to answer. Speaking purely as a musician, I can’t imagine really doing anything different in terms of writing a song because of potential litigation. I think you just hope that’s going to sort itself out. The one place that I think is affected, and it’s not so much an issue in some of these high-profile cases, is co-writing situations. I think there’s a lot more awareness about the dangers of not having written agreements in place when you write music with somebody else. If you’re a band and you bring in someone else outside the band to help you write, or if you’re working with a producer and pick up a guitar and play on the track, and maybe come up with a particular line in the song or a melody in the song, in those kinds of situations, it’s important to have a clear understanding about [ownership].
It’s interesting you say that, though, because I was thinking about the beginning of hip-hop and how there was litigation around sampling as the genre became bigger and bigger. Did that change the way rappers approached sampling?
It changed it completely. People have written articles guessing at what some early hip-hop albums would cost—like, how much would a particular Run DMC album cost to do it today, or a Beastie Boys album? There was a period where people just weren’t wise to it, there just wasn’t enough sophistication about what was and wasn’t okay, and people weren’t out there enforcing their rights, rightly or wrongly, to stop it. A lot of people got away with a lot during that period.
So, [the eventual wave of litigation] definitely did change the way people made music, but think about the difference there. Whether or not you can take a piece of someone’s recording and put it in your own, that’s a really clear test. With the kind of copyright infringement we’ve been talking about, which is over a composition, you would hope you can tell when you’ve done it, but I think just by its nature, you might not always realize. You can also get into situations that require a musicologist to show you the similarity between two songs because the average person can’t see it. I think that’s where it becomes much harder to say that this kind of litigation is going to change the behaviour of individual artists.
Is there anything else people should know about copyright laws when it comes to music?
I guess just the point that just because the lawsuits are happening elsewhere doesn’t mean Canadian artists are immune from them.
And I will say, these kinds of things can sometimes get driven by popular opinion as much as anything. So it’s good that people are talking about these cases. In the States, the divisions between the different district courts and the different circuits could be dealt with by the U.S. Supreme Court taking up the issue, so in theory, if there’s enough public attention around copyright, that might catch the attention of the U.S. Supreme Court and they could decide to take a case or two. Then, maybe you get federal law at the end of the day, which would lead to more certainty for people, at least. So I think in that way, more attention around this is potentially a good thing. But on the other hand, to the extent it encourages non-meritorious suits, that’s really unfortunate.
If you want to learn more about music law, check out Paul’s blog, The Music Lawyer.
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