You don’t need a High Court battle to plant seeds of doubt over the originality of a hit tune.
“Whenever I’ve come up with a new hook and played it to people, I always had to ask, ‘Have I nicked this?’ It’s the first feeling any musician has when they’ve come up with something really good,” admits Tom Gray, songwriter and member of Gomez, the band whose wholly original tunes have earned a loyal following over 25 years and a Mercury Prize.
Like most tunesmiths, Gray, elected chair of the Ivors Academy, the professional association representing the UK’s songwriters and composers, is watching the plagiarism trial over Ed Sheeran’s “Shape of You” with keen interest.
Musicologists have delivered expert witness statements on whether the central “oh I” hook in Sheeran’s 2017 song copies the “oh why” refrain in the less well-known 2015 song by grime artist Sami Chokri and co-writer Ross O’Donoghue.
Not only is some £20m of royalties riding on the verdict, the case is a test of whether the adage “talent borrows, genius steals” applies in a pop world in which songwriters now live in constant fear of a legal challenge over their work – the musical equivalent of VAR chalking off what seemed a perfectly good goal.
Sheeran is being chased up the legal charts by Dua Lipa who is facing two copyright lawsuits over her song “Levitating”.
Florida reggae band Artikal Sound System and songwriters L Russell Brown and Sandy Linzer allege that signature elements of “Levitating” duplicate their works without attribution. Lipa has declined to comment on the claims.
There’s nothing new about overly familiar-sounding hits prompting plagiarism claims – George Harrison was forced to pay £1.1m for the absorption by “My Sweet Lord” of the melody of “He’s So Fine” by the Chiffons.
But a decline in “originality” is making copyright cases more common. Driven by the requirement to be picked up by Spotify’s “if you like this, try this” streaming algorithms, the melodic and harmonic range of chart pop has narrowed.
Songs are based around beats, hooklines and short motifs, often sampled from previous hit songs. Lipa has told how her “Future Nostalgia” used modern production techniques to emulate the disco sound of the 70s and 80s.
It’s highly likely that a catchy sequence of notes has appeared in a similar formation before, either by default or design. “Music is sounding the same and algorithms create an echo chamber which is a problem,” Gray tells i.
“People like Ed now have musicologists go over their work before releasing it. He’s had this experience before. Your average songwriter doesn’t have access to a musicologist to go through every single piece of music to tell you if you’ve been a thief.”
Stars are pre-empting claims – Taylor Swift gifted Right Said Fred a writing credit on her single “Look What You Made Me Do” after recognising a similarity to their hit “I’m Too Sexy”.
“Almost never does someone maliciously steal someone else’s song,” says Gray. “It just doesn’t happen. People underestimate the power of coincidence. It’s far more common that we like to admit.
“And when you’ve got seven million creators on Spotify sticking up 60,000 tunes every week, the likelihood of coincidence becomes vastly greater.”
Gray questions whether another factor in the surge in copyright cases is the meagre returns some songwriters currently receive from streaming platforms.
The dominant form of music consumption pays out millions to big winners like Sheeran, who racked up three billion plays for “Shape of You”, but often leaves even moderately successful writers unable to make a living.
“Songwriters are not getting paid enough and they’re feeling the pain,” says Gray, whose #BrokenRecord campaign has helped force ministers to promise reform of the streaming market.
A writer who hears another work that sounds rather close to theirs might think they are in line for a “payday”. Gray adds: “That could encourage more zealous litigants. The best solution is to have a more equitable distribution of income for songwriters throughout the system.”
Judges who rejected high-profile copyright claims have warned that vexatious writs could suffocate the creativity of musicians. “Paul Simon took whole runs from Bach and stuck them in his songs. A little bit of collaging in songs has always been part of the actual art,” Gray argues.
Sheeran – who added the writers of TLC’s “No Scrubs” to “Shape Of You” shortly after its release – insists he always gives credit where it’s due.
Yet the battle over 2013 hit “Blurred Lines”, by American singer Robin Thicke featuring T.I. and Pharrell Williams, could yet open up a whole new field of litigation.
More than 200 musicians, including composer Hans Zimmer, backed an unsuccessful appeal against the original verdict, which punished Thicke’s song for copying the “feel” of a Marvin Gaye classic rather than its melodic structure
“Copyright was created to protect melody and words, it wasn’t intended to protect the spirit of an idea or the vibe of a song,” says Gray. “Blurred Lines didn’t copy any melody of the original piece, just the feeling, so it set a strange precedent.”
Where would the Noel Gallagher songbook be without the freedom to emulate the sound of his heroes? “I’m a product of my record collection. If I learned to play the guitar by strumming along to the Sex Pistols, or the Kinks, or the Beatles, what do you think I’m going to sound like?” argues the Oasis songwriter.
He had to give royalties to Stevie Wonder because of the close resemblance of a section of his song “Step Out” to the soul legend’s “Uptight (Everything’s Alright)”. Gallagher also had to pay out because his song “Whatever” had overt similarities even he couldn’t disguise to Neil Innes’s “How Sweet to Be an Idiot”.
Songwriters should just ignore the court disputes and rely on their intuition, suggests Gray. “The act of creation is so curious. You can’t believe it when you’ve written something really good.”
But have Gomez ever been ripped off? “Our people always go, ‘That sounds like Gomez, have you heard this?’ We just say, let’s get on with it.
“Film companies have asked, ‘Can we use your song?’ and we say ‘No, you can’t.’ Then you see the trailer and they’ve got some kids to basically do a copy of your song really badly.
“It’s happened twice that on both occasions we went to the film company and said, ‘We’ve got a paper trail of you asking to use our track. And it sounds weirdly identical to the one on your trailer’.
“They’ve both paid us more to make us go away than they were offering us to licence the track in the first place.”
Where there’s a hit, there’s a court day…
George Harrison’s My Sweet Lord v He’s So Fine by the Chiffons
Ex-Beatle paid £1.1m compensation after being found by a judge to have subconsciously plagiarised the Chiffons’ song for his 1970 hit. Harrison said the hymn “Oh Happy Day” was the real inspiration. The experience made him paranoid about writing songs.
Led Zeppelin’s Stairway To Heaven v Taurus by Spirit
Robert Plant and Jimmy Page finally saw off a six-year legal challenge from the US band in 2020. Musicologists told a court the famous descending guitar opening was a common musical device previously used in Mary Poppins’s “Chim Chim Cher-ee”.
Robin Thicke and Pharrell Williams’s Blurred Lines v Got To Give It Up by Marvin Gaye
Thicke and Williams ewre told to pay £4m to Gaye’s family for infringing the “feel” of Gaye’s 1976 classic rather than directly plagiarising musical phrases or lyrics. One judge, during an unsuccessful appeal, said the contested verdict “strikes a devastating blow to future musicians and composers everywhere”.
Ed Sheeran’s Photograph v Amazing by Matt Cardle
Sheeran has settled a £13.8m copyright infringement claim against him in the US brought by songwriters Thomas Leonard and Martin Harrington who claimed his hit ballad had a similar structure to their song, “Amazing”. Cardle’s songwriters said the chorus shared 39 identical notes.
Katy Perry’s Dark Horse v Joyful Noise by Marcus Gray
Perry no longer has to pay £2.1m to rapper Gray, who said she plagiarised an eight-note riff from his song for her hit “Dark Horse”. A judge overturned the initial verdict, saying the melody was not “particularly unique or rare”.