Have you ever listened to the intro of a song, only to realize, when the lyrics finally kick in, that it was not the song you thought it was? You are then either disappointed that it was not that song, or pleasantly surprised to discover a new song.
When this happens to me, my entertainment lawyer brain kicks in and I wonder if the artist got a license to use that particular melody — because if my untrained ear can recognize the similarities, I am sure their team must notice it, too.
Major artists are constantly being sued for copyright infringement for the substantial similarities between their song and another. In recent times, it seems like Marvin Gaye’s songs have been a hotbed for lawsuits. In 2014, the Gaye estate accused Robin Thicke, Pharrell Williams and others of infringing on Gaye’s 1977 song “Got to Give It Up” with the hit “Blurred Line.” When you listen to the two tracks you can hear the similarities; the jury agreed, and ruled in favor of Gaye’s estate.
In August of this year, Ed Sheeran was sued over the similarities between Gaye’s “Let’s Get It On” and his “Thinking Out Loud.” Seemingly, Sheeran just can’t catch a break: In June, he was also sued by songwriters Martin Harrington and Thomas Leonard and their publishing company over another one of his hits, “Photograph,” which they claim was willfully copied from their song, “Amazing.”
So where does this leave artists who are often inspired or influenced by other artists and may subconsciously copy elements of a song without realizing it?
Artists need to vet the finished recordings and let others listen to it. If others tell the artist that the song reminded them of another song they have heard, that should be a red flag that there might be a problem. On the other hand, the case of copyright infringement might not be as apparent.
For instance, take the seminal case in which former Beatle George Harrison’s song “My Sweet Lord” was found to infringe on The Chiffons’ “He’s So Fine”: Bright Tunes Music v. Harrisongs Music 420 F. Supp. 177 (S.D.N.Y. 1976). If you listen to these two songs, it is hard to find the infringement. In that case, the court found that there was a distinctive “grace note,” along with other elements that were copied, which made the harmonies of the songs identical.
Thus, if an artist is ever in doubt as to whether his or her song infringes on another, it is a good idea to get a license or go back to the drawing board. The potential damages are not worth the risk.
Eldonie S. Mason Esq. is the founding member/attorney and arbitrator at Mason Firm, LLC, in East Brunswick. Visit masonfirmllc.com.