Despite a recent high-profile court victory, Ed Sheeran isn’t in love with the shape of copyright law. In a case that has attracted international attention, the estate of the late Ed Townsend claimed that Sheeran unlawfully copied elements of “Let’s Get It On,” which Townsend famously co-wrote with musician Marvin Gaye in the early 1970s. Despite prevailing in the legal battle, Sheeran is “unbelievably frustrated that baseless claims like this are allowed to go to court at all.”
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While reasonable people can disagree about the outcome of the case, Sheeran has a point. It’s troubling that much of copyright law doesn’t have clearly defined fences that enable innovation without litigation. Agencies and lawmakers should set better boundaries while ensuring strong intellectual property (IP) safeguards.
IP protection is all about tradeoffs. Artists pour themselves into their works with an expectation that they’ll have recourse if someone rips off their creations. Enforcement starts to become difficult when, as Cosmopolitan contributor Anna Lewis puts it, “every single song that gets played on the radio sound[s] exactly the same” because “[r]ecord companies have discovered four chords that us humans seem to go crazy for, and they just won’t stop using them.” These chords are often the heart and soul of the compositions they are a part of and would therefore be protectable under most tests applied by courts examining copyright issues. However, this protection would undermine a core principle of copyright law, called “scènes à faire doctrine,” that pertains to recurring patterns of a particular genre of art.
There are some elements that are so foundational to genres of different mediums (e.g., pop chords, robots and spaceships in sci-fi movies) that claiming ownership over them would bottleneck too many possible future works. Once musicians combine enough chords and tether them to specific rhythms and tempo, copyrightable content is ushered into being. The key is defining when exactly “common building blocks of music” transforms into a creative work worthy of protection. Music experts hired by Sheeran’s team argued that the allegedly copied chord sequence has a long musical genealogy that predates Gaye and Townsend and should be available as a building block to all musicians. Tracing these historical links between chords is a musicologist’s job, and, as a result, music copyright-infringement cases have become a costly battle of music experts pitted against each other. Deep pockets ultimately prevail, and upstart musicians accused of infringement by far wealthier estates can easily get crushed even if they have a better case. A far poorer Ed might not have been so lucky.
Fortunately, there may be a far better alternative to the status quo. The U.S. Copyright Office could conceivably work with academics, trade groups, and various non-profits to create a “chord library” identifying elemental themes across genres. If a chord sequence can be officially traced back in the library to a song in the public domain, then the office can automatically deem the chord free for use. Under this system, Sheeran’s lawyers could have simply cited a chord-library entry with an accompanying Copyright Office certification rather than digging up the history themselves. Presumably, the library would have to be integrated with audio fingerprinting technology that would allow artists to upload their music and have the library automatically compare it to chord sequences in its database.
This library-style system has already proven successful in different contexts. Medical-device manufacturers can avoid a costly Food and Drug Administration (FDA) premarket approval process for their products by proving that their devices are substantially equivalent to a “predicate device” that has already been approved. To help facilitate this process, the FDA has a database where companies can search for products already on the market that seem similar to theirs. Regulators know full well that if this easy look-up system didn’t exist, innovators would have to search far and wide in consumer reports, news articles, and shelves to find a predicate device to shield them from legal and regulatory issues. Music would entail a more complicated documentation process, but the benefits would be significant.
Sometimes, costly copyright litigation is inevitable to safeguard IP rights. Courtroom drama can also make a mess of things and transform songwriting into a cost-prohibitive slog. By creating clearer boundaries around protectable content, the Copyright Office can ensure that artists have room to breathe while creating their next hit. Ed shouldn’t be the only stakeholder “Thinking Out Loud” about changes to the copyright system.
David Williams is the president of the Taxpayers Protection Alliance.