That Sounds Familiar . . . Another Hit Song gets Hit with Copyright Infringement Suit

       Infringement or Independent Creation?

The New Year isn’t starting off so well for a few big name musicians. Two Australian songwriters filed a lawsuit in New York on January 10^th against Ed Sheeran, Tim McGraw, Faith Hill, and others for copyright infringement in the new hit duet “The Rest of Our Life.”¹ Plaintiffs claim that the duet is so substantially similar in music, lyrics, and theme to their 2014 song “When I Found You” that some sections are a “note-by-note” copy and independent creation is “implausible.”² They are seeking a permanent injunction against the use of the song as well as $5 million in monetary damages.³

As part of a copyright infringement claim, the plaintiffs must show that the defendants had some form of access to the infringed song and thus was not independently created. The plaintiffs in this case have a fairly compelling story for that. The boyfriend of the “When I Found You” performer is a Sony executive based in Australia, and Sony/ATV is Ed Sheeran’s publisher.⁴ The lawsuit claims that the Sony executive had noticed the similarities between the songs and had said nothing, and had possibly given the defendants access to the Australian song when he presented the song to Sony Music to help his girlfriend gain exposure.⁵

“The Rest of Our Life” has 9.6 million YouTube views and over 8 million streams on Spotify.⁶ Comparatively, as of few days ago, sources were saying “When I Found You” had just over 58,000 views on YouTube.⁷ Of course, its popularity has increased due to the lawsuit, with the video now having over 500,000 views as of this post.⁸

This story of a big music name stealing the work of a lesser known or older artist is certainly not new. One of the most notable is the “Blurred Lines” case, which was filed by the same music industry attorney as this case and involved the copying of Marvin Gaye’s 1977 “Gotta Give it Up” by Robin Thicke and Pharrell Williams for their hit song.⁹ Plaintiffs won the case with a $5.3 million judgment against the artists.¹⁰ Of course, there are some situations where the question of copying is clearly overstated, such as R&B singer Jesse Graham claiming Taylor Swift stole his lyrics “haters gonna hate” for “Shake it Off,” and suing for $42 million (the judge wrote a hilarious dismissal of the claim using many of T Swift’s lyrics in her opinion).¹¹

Looking beyond these cases, I think the question is whether we will continue to see the rise of music copyright infringement claims. After the substantial judgment rendered in the “Blurred Lines” case in 2015, there has already been a significant increase in such disputes.¹² Several well-known artists have faced similar claims, including Sam Smith and Bruno Mars, with many of them settling outside of court.¹³ Ed Sheeran himself actually settled in another copyright case regarding his hit song “Photograph” by adding the plaintiffs’ names as coauthors.¹⁴ And, in regards to proving access, with the popularity of aspiring artists posting their work on platforms like YouTube, how easy will it be for someone to prove that another musician heard their song and ripped it off? It seems as though some artists may have to face the music and pay up.