Comment by Charles Cronin

The plaintiffs are represented by Richard Busch, the Nashville attorney who represented Marvin Gaye’s heirs in their case against Pharrell Williams and Robin Thicke. The plaintiffs’ infringement allegations against Ed Sheeran, et al. have no more merit than those lodged against Williams and Thicke, but Busch’s complaint (linked below) marshals an impressive amount of quantitative documentation purportedly establishing substantial similarity of protected musical expression between the songs in question, and demonstrating defendants’ copying “is breathtaking in its deliberateness, magnitude, and hubris.” (The complaint is larded with inflammatory superfluities.)

The complaint does, however, present a helpful alignment of the melodies of the choruses of the disputed works in an attempt to establish the claimed “39 identical and 4 closely related pitches.” But more importantly, this comparison reveals that neither chorus melody has much protectable original musical expression to begin with. Both are comprised of similar two-measure motifs of two or three pitches in simple, regular rhythmic settings coordinated for the most part with the meter of the words to which they are sung. The harmonic progressions over which these repeating phrases are sung could not be more generic or predictable in this ballad genre, and have no bearing on the question of similarity of original expression.

The melodies sound similar simply because they have a similar rhythmic scansion in which the second measure of each iteration of the motif contains a quarter rest on the second beat of the vocal line, creating a hiccupping effect before sounding the last note and word of the phrase. But this is nothing more than a commonplace musical convention used in innumerable existing works across a variety of genres.

The sadly predictable underlying reasons for this claim can be inferred from the complaint’s dwelling on the success of the defendants’ song. Country singer Keith Urban is unwittingly, and most likely unwillingly, dragged into the mix with a reference to his expression of enthusiasm for the defendants’ song. “Little did he know,” the complaint asserts, “that he was singing along to [plaintiffs’ song].” Even worse – or better, from a damages calculation perspective – defendants’ song was featured in a feature film, bringing even more acclaim and remuneration to the defendants.

The complaint suggests that the defendants should have obtained a license from plaintiffs for “using” their chorus, and that plaintiffs should have been credited for their “contributions” to the defendants’ hit song. These suggestions must appear fatuous even to the plaintiffs: when defendants created their work, even if they had earlier heard the plaintiffs’ song, they did not intend to copy the plaintiffs’ musical expression. It would never have occurred to them that the chorus of their song might bear some generalized similarity to an existing melody. In fact, the melody of the defendants’ chorus is likely akin to those of dozens of preexisting works.  The defendants’ problem then, can be located in the financial success of their live and recorded performances of their song, and the resentment of that success on the part of opportunistic plaintiffs seeking a “piece of the action.”

In early April 2017 the press reported that “an undisclosed settlement had been reached between the parties”. This implies that the defendant — vastly more financially successful than the plaintiff — gave the plaintiff some money not as an admission of infringement but rather to brush off an opportunistic nuisance. As noted in The Guardian article reporting the settlement, “It is no coincidence that [this case] was brought in America by one particular lawyer.” After all, “The processes of deciding these things is different in American courts, where they use a jury, as opposed to the UK, where you get an informed and knowledgeable judge who decides.”

Complaint: PDF