The Ed Sheeran Problem, or, How the Record Industry Got What It Asked For
You might have seen Ed Sheeran’s triumphant statement about his victory in a copyright lawsuit that alleged he’d copied elements of Sami Switch’s “Oh Why” in his song “Shape Of You”:
Sheeran’s statement makes two critical points: first, that there are only so many ways of arranging English words and musical phrases, and with 60,000 new songs being released to Spotify every day, there will inevitably be some coincidental duplications of words and melodies.
That’s an idea that’s been in the air for a hell of a long time. Spider Robinson won a Hugo in 1983 for a short story called “Melancholy Elephants” where the widow of a legendary musician tries to talk a U.S. senator out of extending copyright terms on the grounds that it will result in every copyrightable element of every art form being under copyright forever:
It’s also an idea the record industry fought like hell against. Take the Bridgeport Music case, which resulted in a judgment that a two-second sample, distorted beyond recognition, could still constitute a copyright violation:
The industry long took the position that any taking of any kind should be controlled by the “original artist” — while simultaneously undergoing waves of consolidation that ensured that whoever the “original artist” was, they’d end up signed to one of three labels, in a deal that required them to sign away these ever-expanding rights.
It was inevitable that this would come back to bite them in the ass, and it did. In 2015, the Marvin Gaye estate triumphed in a bizarre case over Pharrell Williams and Robin Thicke’s song “Blurred Lines,” successfully arguing that while the song didn’t take any of Gaye’s words or music, it took his vibe:
This opened a floodgate that saw lots of minor artists suing stars because there was some incidental, minor overlap, like a $2.3m judgment against Katy Perry over an eight-note phrase that was similar to phrases in many other songs, including an obscure piece of Christian hip-hop (Perry won on appeal).
These suits put the music industry in a bind, forcing them to argue for fair use and other limitations to copyright after decades of arguing against them. The results were often surreal. For example, Warner Chappell repeatedly sent manual copyright takedowns to YouTube to get a video removed on the grounds that it infringed Perry’s copyright:
The problem? The video didn’t have any of Perry’s music in it. Instead, it had the eight-note phrase that Perry was accused of copying, over which Warner Chappell spent millions on legal bills, insisting that it didn’t sound anything like Perry’s music. What’s more, the YouTuber they repeatedly, manually, deliberately targeted was agreeing with them and had included the music to prove it sounded nothing like Perry’s song.
The music industry got exactly what it wished for: a world in which the customary borrowing and trading between musicians and their songs was prohibited, with incredibly stiff penalties. To the extent that they’d even considered that this would interfere with normal musical activity, they’d assumed that it wouldn’t interfere with their activities, since the three labels would be able to cross-license to one another, and between them, they’d own everything.
But they didn’t think it through. They failed to realize that the legal liability regimes they’d created would cut both ways, and that the peripheral acts and businesses — obscure Christian hip-hop artists, say — would see the giant labels and their stars as irresistibly juicy targets.
They were the proverbial dog that finally caught the bus, and then had no idea what to do with it.
Which brings me to Sheeran’s other important point. He takes partial blame for the “Shape of You” suit, thanks to his decision to settle another baseless suit in 2017, over his song “Photograph.” The suit sought $20m, and he judged that the cost of quick payment was worth avoiding the hassle and risk of a suit.
That, he says, opened the floodgates, as unscrupulous or deluded musicians decided to try their luck and see if they, too, could prise a settlement from him.
But it’s no accident that Sheeran settled. Modern copyright law was designed to encourage settlements, with high statutory damages (up to $150K/infringement) that makes the price of an unsuccessful defense certain financial ruin. The record industry used this to its advantage during the Napster wars, when it sued 19,000 children and extracted settlements from nearly every one of them, almost never having to go to court.
Sheeran now says that he’s video-recording all of his songwriting sessions to prove he made up his tunes, just as Russian drivers record all their trips with a dashcam in case a scammer jumps in front of their cars and claims they were maimed by careless driving:
But of course, even putting himself under 24/7 surveillance won’t help Sheeran if he gets hit with a vibes suit like the “Blurred Lines” case. As James Boyle and Jennifer Jenkins document in their seminal graphic novel, THEFT: A History of Music, all music borrows from other music:
And it always has (music scholars’ pet name for Brahms’ First Symphony is “Beethoven’s Tenth Symphony”).
For decades, the legal program of the music industry has been to dismantle the process by which music is made, with the idea of rebuilding it within the walls of a very small number of very large companies, who can use their position to extract contractual concessions from creators and assert control over the changing currents of taste and distribution.
In so doing, they created a set of potent legal weapons that can be wielded by people who have even fewer scruples than executives at giant record companies. Make no mistake: copyright trolls are a feature of copyright maximalism, not a bug.
Kristain Baty (modified)
CC BY-SA 2.0
Cory Doctorow (craphound.com) is a science fiction author, activist, and blogger. He has a podcast, a newsletter, a Twitter feed, a Mastodon feed, and a Tumblr feed. He was born in Canada, became a British citizen and now lives in Burbank, California. His latest nonfiction book is How to Destroy Surveillance Capitalism. His latest novel for adults is Attack Surface. His latest short story collection is Radicalized. His latest picture book is Poesy the Monster Slayer. His latest YA novel is Pirate Cinema. His latest graphic novel is In Real Life. His forthcoming books include Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid (with Rebecca Giblin), a book about artistic labor market and excessive buyer power; Red Team Blues, a noir thriller about cryptocurrency, corruption and money-laundering (Tor, 2023); and The Lost Cause, a utopian post-GND novel about truth and reconciliation with white nationalist militias (Tor, 2023).