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Plagiarism or just coincidence?

Foto_piano.jpg

The British singer-songwriter Ed Sheeran is accused of copyright infringement. Songwriters Martin Harrington and Thomas Leonard - who wrote the song 'Amazing' - claim that Sheeran's song 'Photograph' is similar to 'Amazing' (which is sang by Matt Cardle). According to the songwriters, it is abundantly clear that it was copied.


The similarities would include the following:
- identical tunes and an identical rhythm (mainly in the refrain);
- identical lyrics; and:
- a similar style.


How would a Dutch judge assess such a case? Is there any similarity? Moreover, are the described elements copyright protected?

Protection of musical works under Dutch Copyright Act: principles


The Dutch Copyright Act includes provisions about copyrightable works (such as lyrics, photos, plays or musical works). A work will be copyright protected if it contains original elements. This means 'original in the sense that the work is the author's own intellectual creation'.


Such originality implies that a work:
- may not be derived from another work (the 'original' element); and:
- that it includes creative choices (own 'intellectual creation').


In relation to the last aspect this is subject to the fact that if the form is too banal or trivial, the creation will not be protected.


In assessing plagiarism the following question is rather relevant: are there any specific elements copied in the creation? It is important that the elements are derived from other creations. Accidental similarities do not lead to copyright infringement. Songwriters Harrington and Thomas Leonard will probably claim that Ed Sheeran consciously copied the elements mentioned above.


Ed Sheeran will defend himself by claiming his song is not derived from theirs. He will probably claim that the elements are not copyright protected, which means copyright infringement is out of the question.


The elements


The identical tunes and rhythm
According to Article 10 paragraph 1 sub 5 of the Dutch Copyright Act, a musical work is copyright protected (as long as the work is original and the author made creative choices). Such a work will be protected regardless of the form or its quality. Copying (parts of) such a work may constitute as copyright infringement. The tunes and rhythm shape the music. Therefore, when using identical tunes and rhythm this can lead to copyright infringement on a musical work.


Identical words
According to Article 10 paragraph 1 of the Dutch Copyright Act, lyrics also qualify for copyright protection. Also in this case the quality is not relevant to the question whether the lyrics are copyright protected.
When only parts of the lyrics, phrases are copied (for example two sentences) this may also constitute a copyright infringement.

 

The European Court decided that copying only 11 words can be seen as an infringement, under the condition that the copied part includes a component that reflects the intellectual creation of the (original) author.


Similar styles
A style does not qualify for copyright protection in the Netherlands. Copyright protection refers to a specific, concrete work. Nevertheless, copying a certain style can play a role in assessing a possible copyright infringement.


In this case, I presume that the music and the lyrics are copyright protected. The music and lyrics are (as far as is known) not derived from other works. Also, the authors made several choices by creating the music and lyrics; choices are made concerning the musical instruments, rhythm and melody. The lyrics are based on (creative) choices, such as in relation to the choice and use of words and syntax.


The assessment


The music
When comparing both songs the couplets indeed seem similar. On the contrary, the refrains and the 'bridge' do not seem similar. You can hear the similarity between the couplets in this video.

 

The lyrics
Between both lyrics there seems to be little to no similarity. An example:

 

Amazing  Photograph

 

Refrain

 

I had to look inside
This fragile heart of mine
To find exactly what it was you saw

 

I had to put myself back in the firing line
To take the shot that knocked me to the floor

 

I was down, losing faith, oh I was lost in the crowd
You brought me round

 

Loving can hurt

 

 

Loving can hurt sometimes

But it's the only thing that I know

 

When it gets hard
You know it can get hard sometimes
It is the only thing that makes us feel alive

 

Couplet

 

How did you find me?
You came out of nowhere like lightening

 

It's kind of amazing how you found me
Through all the noise somehow
How did you see me?

 

Broke through the darkness and you reached me
It's kind of amazing how you found me
Through all the strangers somehow

We keep this love in a photograph
We made these memories for ourselves
Where our eyes are never closing
Hearts are never broken
Times forever frozen still

So you can keep me
Inside the pocket
Of your ripped jeans
Holdin' me closer
'Til our eyes meet
You won't ever be alone
Wait for me to come home

 

 

In virtue of the couplets, in my opinion a judge cannot decide that there is similarity between both lyrics.


The style
Although the style of both songs are not copyright protected, the style plays an important role in assessing the plagiarism by Sheeran. This aspect does not work in favour of Sheeran; the authors may claim that the songs have the same style; they can both be qualified as ballads within the pop genre.


Based on the above, proceedings in the Netherlands will mainly focus on the similarity of the music in the couplets of both songs. In my opinion, it is quite possible that a judge decides that Sheeran copied the music of the couplet.


Defence
Sheeran's counterclaim that the refrain does not qualify for copyright protection, could be a relevant issue. If Sheeran is able to give examples of highly similar or consistent melodies, this could indicate that the music of the couplets is not original and there were few to none creative choices made. There can be no infringement when the work is not protected.


In conclusion...


If the judge decides that Sheeran infringed the copyright of Harrington and Leonard, the specific damages related to this infringement should be assessed. For example, is the reputation of the authors damaged by the infringement? Or will they claim the profits made by Sheeran with his song 'Photograph'? The determination of the extent of the damages will not be easy.


The case of Sheeran does not stand by itself. An American judge decided earlier that Pharell Williams infringed the copyrights of the song 'Ain't that peculiar' from Marvin Gaye with his song 'Happy' (the similarity between both songs can be found here).


We also wrote an article on our webpage about a similar case concerning the similarity between 'Blurred Lines' of Pharell and Robin Thicke and 'Got to give it up' by Marvin Gaye: 'Blurred Lines resultaat van plagiaat'.


Very recently, Led Zeppelin was also involved in proceedings about plagiarism. The intro of their song 'Stairway to heaven' was claimed to be copied of Spirit's song 'Taurus'. Meanwhile, an American judge decided Led Zeppelin did not infringe any copyrights. You can listen to a comparison here.

 

What do you think? Is this a clear case of plagiarism?