Music copyright infringement cases in US and UK: Building a house upon the sand or the rock?

Abstract

Since the case against Robin Thick and Pharrell Williams over their song Blurred Lines, which found that there had been unlawful copying of Marvin Gaye’s song Got to Give it Up, there has been an increasing number of disputes around copying of music. This trend is clearly seen in US case law and has perhaps influenced rightsholders to bring similar claims in the UK. This chapter provides an overview of the key music copyright infringement cases in the US and UK over the past decade. In doing so, it argues that the application of the legal test, particularly in relation to questions of access and taking of a substantial part, needs to be reconsidered in view of both digital music consumption and production practices. Since 10th May 2018 Ed’s royalty payments for the song [‘Shape of You’] have been frozen by PRS after singer-songwriter Sam Chokri (known as Sami Switch) claimed that ‘Shape of you’ was copied from Sam’s song ‘Oh why’… The case continues and the issues argued mean that the answer is not clear cut. Whilst the two songs might sound similar, this is only the starting point. As the Particulars of the Claim rightly point out it is only infringement if what is taken is a substantial part – based on the quality of what is taken not the quantity; in other words - the original elements. So copying unimportant details, or mere ideas, does not amount to substantial taking. The question is not whether “clicking” is something that would obtain copyright protection in its own right, but whether that component is a substantial part of the original song… The line between copying and taking inspiration is ever blurred (pun intended). However, the blurred lines case differs in a few ways but most significantly that Robin Thicke admitted to listening to Gaye’s Got To Give It Up and during an interview admitted "Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, Damn, we should make something like that, something with that groove." H Bosher, ‘Oh why, oh I, wonder if it is a substantial part...’ The IPKat, 14 August 2018