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: