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News / Ana Clara Ribeiro / 05 Oct 2023

5 Lessons We Can Learn from 2023’s Biggest Music Copyright Infringement Cases

7 minute read

If you’ve been keeping up with legal news over the last few years, you may feel like the number of music copyright infringement lawsuits has increased lately, especially after the 2015 “Blurred Lines” battle. The year 2023 alone had a ton of notorious cases involving music from some of the biggest stars of today and all time, from Marvin Gaye to Dua Lipa.

Plagiarism can be a very complex and subjective thing to prove. The biggest music copyright infringement cases of 2023 go as far as questioning if things like a chord progression or an entire music genre can be protected. Some of these cases may go down as precedents that shall be used for years to come, so it’s worth learning from them. 

Let’s look at 5 lessons that stood out in 2023’s biggest music copyright infringement cases so far.

Case 1: Marvin Gaye's "Let's Get It On" x Ed Sheeran's "Thinking Out Loud"

Key takeaway : Chord progression and rhythm cannot be copyrighted.

In 2017, singer-songwriter Ed Sheeran and co-writer Amy Wadge were sued by the estate  of Ed Townsend, who co-wrote the 1973 hit “Let’s Get It On” with Marvin Gaye. According to the estate, Sheeran and Wadge copied “Let’s Get It On”.

Dr. Alexander Stewart, a musicologist who served as an expert witness for the plaintiffs argued that the two compositions shared a similar chord progression and the same harmonic rhythm. Stewart played a computer-made rendition of the “Let’s Get It On” sheet music to find that the similarity rate with “Thinking Out Loud” is 70%.

The similarity is uncanny even to untrained ears. Sheeran himself even played them back-to-back in his concerts; it’s easy to hear how the different melodies and lyrics fit the same chord structure and rhythm pattern. But do the chords and rhythm similarities mean plagiarism?

The jury’s answer was no. It was recognized that “Thinking Out Loud” is an independent creation and did not copy “Let’s Get It On”. 

Copyright attorney Ilene Farkas, who represented Sheeran in Court, stated that the verdict “is a massive win for all songwriters out there, who now will not be forced to hesitate about using basic elements of their toolkit, like chord progressions, pitch sequences, and syncopation, in their creative processes.”

Case 2: Necey X's "Grab ‘Em By The P****" x Cardi B & Megan Thee Stallion's "W.A.P."

Key takeaway : Common expressions of popular use cannot be copyrighted.

“W.A.P.” was one of the biggest hits of 2020, thanks in part to its fun, audacious, witty lyrics. But rapper Denise Jones didn’t quite share the same excitement over them.

Jones, who goes by the artistic name of Necey X, argued that Cardi and Megan had infringed her copyright over the song “Grab ‘Em By the P****”, whose lyrics share a similar theme (for context, “W.A.P.” stands for “wet a** p****”).

However, as reported by legal affairs journalist Meghann Cuniff, the Judge dismissed Jones’ case, stating that the expression “p**** so wet” is “employed frequently in popular culture and other Hip-Hop songs.” 

Because copyright law does not protect ideas or themes, a word expression must meet a certain degree of originality to be protected by copyright. The Judge found that was not the case in the “W.A.P” lawsuit, as the expression claimed by Jones’ was “neither original or unique” to her.

Case 3: Steely & Clevie’s "Fish Market" x Reggaetón

Key takeaway : We have yet to find out if it’s possible to copyright the foundations of a whole music genre.

Sometimes new music genres or entire cultural manifestations can arise out of one unique song or a small group of people’s creation. But although pioneerism is culturally celebrated, ownership over a music genre is a little more complicated when it comes to Intellectual Property.

Producers Steely & Clevie are suing a number  of reggaetón exponents over an alleged copyright infringement of their 1989 song “Fish Market”. Luis Fonsi, Daddy Yankee, Bad Bunny, Karol G, Ricky Martin, Enrique Iglesias, Rauw Alejandro, Becky G, Drake, and Rosalía, are just some of the names Steely & Clevie accused of unauthorized use of the composition and sound recording of “Fish Market”.

That’s because “Fish Market” is a landmark of the genre called dembow, which is believed to have given rise to the creation of reggaetón. According to Steely & Clevie, songs such as Bad Bunny’s “Tití Me Preguntó” and Daddy Yankee’s “Gasolina” incorporate “both qualitatively and quantitatively significant sections of the Fish Market recording and/or composition”.

In an ongoing lawsuit, the defense of Maluma, Yandel, Myke Towers, and others has argued that the elements their music shares with Steely & Clevie are “unprotectable common drum beats and basic rhythms”. In a similar line of thought, the defense of Bad Bunny has argued that Steely & Clevie are trying to “monopolize practically the entire reggaeton musical genre for themselves by claiming copyright ownership of certain legally irrelevant and/or unprotectable, purported musical composition elements”. 

There are several precedents in the U.S. about rhythms or musical building blocks not being subject to copyright. However, if Steely & Clevie win their case, this could lead to a scenario where every new reggaetón track must clear the samples of “Fish Market”.

Case 4: Artikal Sound System's "Live Your Life" x Dua Lipa's "Levitating"

Key takeaway You can only plagiarize a song you had previous access to.

Sometimes it just happens that similarities are but coincidences. However, in most music plagiarism lawsuits, coincidence may not suffice as defense — the plaintiff must prove that the infringer had “access” to their song. That might have been the key to a big case against Dua Lipa falling apart.

In 2022, reggae band Artikal Sound System filed a lawsuit arguing that Lipa’s “Levitating” copied the hook of their 2017 song “Live Your Life”. But in 2023, Judge Sunshine S. Sykes ruled in favor of Lipa, given the lack of evidence that the writers of “Levitating” had previous access to “Live Your Life”. 

Although the band was given a chance to refile the case, they filed a motion to dismiss it.

It’s worth noting that when the similarities are too big and evident, proof of access may not be required; but that wasn’t how the Federal Judge understood the similarities regarding “Levitating” and “Live Your Life”.

Case 5: SmartStudy's "Baby Shark" x Johnny Only's "Baby Shark"

Key takeaway: No one owns copyrights over traditional, public domain works.

Pinkfong’s “Baby Shark” has been one of the most popular children’s songs for a while. But what many people may not know is that its history dates back to almost a century.

The “Baby Shark Dance” that went viral on YouTube in 2016 is inspired by a traditional Korean song; and it wasn’t the first song to have been created out of it. U.S. composer Johnny Only uploaded his version of “Baby Shark” on YouTube in 2011, and in 2019, he sued SmartStudy (the company that owns the rights over the Pinkfong “Baby Shark Dance”) for copyright infringement. The lawsuit took place in South Korea, where SmartStudy is based.

Because “Baby Shark” is a popular song shared from one generation to another through oral tradition, the Seoul Central District Court ruled that no one owns the copyrights over it, and that Only’s version did not feature any creative elements protected by copyright.

Disclaimer: This article is published for informational purposes and does not constitute legal advice.

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