Change of tune – lessons to be learned from pop stars under fire for alleged copyright infringement

24-03-2022


A number of high profile pop stars have recently found themselves on the receiving end of legal claims for alleged copyright breaches, and these cases have highlighted the need for all creators to prioritise the protection of their intellectual property.

Pop stars’ intellectual property

In recent months, singer/songwriter/pop stars Ed Sheeran, Dua Lipa and Sam Smith have all been involved in lawsuits alleging that they have copied song elements from other artists.  Ed Sheeran is facing allegations in the English courts in relation to his massive 2017 hit “Shape of You”, while Sam Smith (perhaps best known globally for his theme song for the James Bond film “SPECTRE”) is involved in legal action in Los Angeles over his song “Dancing with a Stranger”.  Dua Lipa, meanwhile, is facing two lawsuits in America over her hit song “Levitating” (which was the longest-running Top 10 song ever by a female artist on the US Billboard Hot 100), according to this recent article here.

Although it may seem surprising that lesser-known artists would be prepared to take on huge pop stars like Sheeran, Lipa and Smith, in fact, copyright infringement claims involving song lyrics and melodies regularly appear before the courts.  Successful artists (no doubt backed by large record labels) may be seen as tempting targets with deep pockets, and substantial royalties could potentially be at stake when a claim relates to a particularly successful song.

But it’s not just those in the music industry that need to protect their work, and safeguarding your intellectual property rights should a priority for all creators, from entrepreneurs, inventors and software writers, to graphic designers, architects and artists.

Copyright protection

Copyright is a type of intellectual property right that applies protection automatically when an original work is created.  Unlike, for example, registering a trade mark, design or patent, copyright protection does not need to be applied for and doesn’t involve being added to any central register.  Even marking an original work with the copyright symbol © (together with the creator’s name and year of creation) is only optional, and is not required to gain the benefit of copyright protection.

Once an original work is created, the law of copyright protects the original work from being used by others without permission.  Many people think of this protection as being most relevant in the creative arts, for example, in literature, drama, music, art and photography, where the protection extends to recordings and broadcasts, as well as layouts for written, dramatic and musical works; however, it’s also equally applicable in relation to more “commercial” original works, such as technical drawings and advertisements.  There’s also no requirement for the work in question to exist physically, and so copyright will also apply to intangible creations such as software, web content and databases.

Copyright infringement

If a third party copies or makes use of an original work (whether by passing it off as their own or by sharing it with others without the permission of the original author), they are likely to be infringing the creator’s copyright, giving rise to a potential claim against them.

Of course, some breaches of copyright may be easier to prove than others.  To succeed with a claim for copyright infringement, the copyright owner will need to do more than simply demonstrate a material similarity between the original and the infringing work; they will have to demonstrate a causal connection through which actual copying could have taken place.

Pop stars singing for their supper

These current song-writing cases against Ed Sheeran, Dua Lipa and Sam Smith are a good practical example of these principles in practice – it’s not enough to simply show that the lyrics or melody may sound the same, the claimants must show that there is evidence of a direct link between the two works.

In contrast, other types of copyright infringement can normally be more easily identified, for example, in relation to playing live or recorded music in public without a licence, or photocopying, scanning or printing the content of a book or other publication (beyond the limit allowed for personal use or academic study).

Perhaps the most common form of copyright infringement in the commercial world is using a photograph or other image copied from another organisation’s website without permission.  Even if the third party modifies the image that they have found, it may well still be a breach of the original copyright unless they have permission to do so.

Better to ask for permission than forgiveness

Sometimes, permission can be dealt with in a relatively informal agreement (possibly even through an online form) that deals with issues such as usage fees and crediting the original author.  However, in some cases, a more formal contract or licensing agreement may be needed to clearly set out the agreed ways in which the original work can be used.

Using another party’s copyrighted works without permission is never advisable, as the cost of dealing with a potential copyright infringement claim are likely to far outweigh the licensing fee that would have been applicable (not to mention the additional time and stress that defending a copyright infringement claim would involve).

If, on the other hand, you are the creator of any form of original work, it is important that you carefully consider how best to protect, enforce, and exploit your intellectual property rights, in order to safeguard your work, your brand or concept.

For more information on this or any other issue relating to intellectual property disputes, visit our dispute resolution page here or contact Michael Axe by emailing Michael or by calling him on +44 (0)1628 502448.

This article is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from taking any action as a result of the contents of this article.


Michael Axe

Senior Associate
Commercial Disputes

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