Copyright Infringement Current Event
About a month ago, the British pop star Ed Sheeran reached a $20 million settlement agreement with deal two American song writers over a copyright infringement case. The song writers, Martin Harrington and Thomas Leonard, sued Sheeran in California over his hit song, “Photograph.” Harrington and Leonard claimed that “Photograph” was “verbatim, note-for-note copying” (BBC News, 2017) of their song “Amazing,” which was written in 2009. The song “Amazing” was published and recorded by the singer Matthew Cardle, who won the talent competition TV show, The X Factor in 2010. The two song writers also sued Sheeran's record company, Atlantic Records along with Warner Music Corporation UK, Sony Music Publishing, Asylum Records and other music and publish identities for a total of 11 defendants in the case. The basis for the copyright infringement case is that according to Harrington and Leonard the chorus of the two songs had “39 identical notes” (BCC News, 2017) which they claimed were “instantly recognizable by the ordinary observer.” In following the many headlines around this case, Sheeran and the eleven defendants initially responded by motioning to that the claim from Harrington and Leonard was essentially too long and confusing. This was surprising because in understanding copyright infringements from this class, one would think that the defendants would counter that this was fair use because not enough of the original song was used. They could have also countered that it was a transformative use of the notes in a completely different meaning and expression than the original song. What they did claim was that between the 11 defendants it was unclear from the claim who was being sued for what in the case. In my opinion, this motion just makes Sheeran appear guilty of copyright infringement because they did not even try to claim fair use. Also, Sheeran’s record company tried to claim that this case did not have jurisdiction in the United States because the company is based in the United Kingdom. This brings into discussion some of the topics covered last in Module 1 around jurisdiction. In January of this year, “U.S. District Judge James Selna agreed to pause the dispute in favor [jurisidictional] discovery,” (Cullins, 2017) both otherwise agreed to have the copyright infringement case move forward. The case was then settled out of court for $20 million and Harrington and Leonard are now credited as co-writers for the song. Additionally, the two plaintiffs have “gained a significant share of royalties,” (BBC News, 2017) from the song “Photograph.”
While this case was settled outside of court, it is easy to follow the steps for how this could be considered a copyright infringement. First, in terms of the purpose and character of the use, Sheeran’s song was for profit. While Sheeran may have had a case that the song was transformative, in listening to both songs are played on the acoustic guitar with lyrics focused around love and family. Personally, in listening to the songs, the melody of the chorus does song very similar to the original song. However, the rest of the songs sound completely different. Based on this, Sheeran might have been able to claim that the use was transformative. Additionally, Sheeran could claim that a small percentage of the original song was used, again favoring fair use. However, where the fair use case becomes challenging is around the nature of the original work as well as the profit of Sheeran’s song. The original song was in fact a creative work, and was published and recorded. Also, Sheeran’s song was on the Billboard Top 100 and earned him royalties and fans all over the world. This certainly hurts the fair use case because the American song writers would have earned some income from those royalties. The original song “Amazing,” was not nearly as successful as Sheeran’s song. In conclusion, it was likely wise for Sheeran to settle this infringement issue outside of court. The fair use arguments seem like they are there, but it would certainly be a challenging and long case. He might have saved more money in legal fees and helped his reputation by containing this issue through the settlement. References:
Bagley, C.E. and Savage D.W. (2010). Managers and the Legal Environment Strategies for the 21st Century, South Western Cengage Learning, OH. 6e Ed Sheeran settles Photograph copyright infringement claim. (2017, April 10). Retrieved May 05, 2017, from http://www.bbc.com/news/entertainment-arts-39556351 Cullins, A. (2017, January 13). Hollywood Docket: CBS Sued for Defamation; Ed Sheeran Can't Dodge 'Photograph' Suit. Retrieved May 05, 2017, from http:// www.hollywoodreporter.com/thr-esq/hollywood-docket-cbs-sued-defamation-edsheeran-cant-dodge-photograph-suit-962979 Gardner, E. (2017, April 10). Ed Sheeran Gives Up Part Ownership of 'Photograph' in Settling Copyright Lawusit. Retrieved May 05, 2017, from http:// www.hollywoodreporter.com/thr-esq/ed-sheeran-settles-copyright-lawsuitphotograph-992354
Lewis, R. (2016, June 9). Ed Sheeran's 'Photograph' targeted in $20-million copyright infringement lawsuit. Retrieved May 05, 2017, from http://www.latimes.com/ entertainment/music/la-et-ms-ed-sheeran-lawsuit-20160609-snap-story.html Reporter, E. G. (n.d.). Photo-rule8. Retrieved May 05, 2017, from https:// www.documentcloud.org/documents/3130775-Photo-rule8.html