More tenuous musical copyright claims
Hey, all you fans of musical copyright disputes: if you’ve just finished digesting Marvin Gaye v Blurred Lines and the Whiter Shade of Pale case and are wondering where your next fix of euterpean litigation is coming from, have we got a treat for you: Led Zeppelin and Ed Sheeran (not a double bill we thought we’d see any time soon).
In the former, the estate of Spirit guitarist Randy California is claiming a songwriting credit (oh, and a share of $500m+) from Led Zep on the basis that Stairway to Heaven is little more than a reworking of Taurus. Meanwhile, the latter sees Matt Cardle (he of X Factor 2010) suing Ed Sheeran for having allegedly nicked the chorus from Amazing for use in Photograph. Two very different cases about different songs, different circumstances and different jurisdictions but each has something to teach us about copyright:
First, it’s usually about the money. Justice isn’t cheap and, while it’s not unknown for copyright owners to sue purely for the sake of justice and principle, it’s noticeably more common when there’s lucre involved. Significant lucre. Not only does that give everyone something to fight over, but there’s also a chance of covering their costs afterwards. Why did it take Mathew Fisher 40 years to sue Procul Harum? Why has Mr California’s estate only thrown its hat into the ring now, when the man himself apparently declined to do so during his lifetime? Might it be the classic status of the songs in question? The jury is out (not literally in all cases, but see below).
Second, copyright is all about copying. Mere inspiration or coincidental similarity is not sufficient – there has to have been actual plagiarism. Copying can be direct and deliberate (in which case it’s all the easier to prove) but it can also be indirect or subconscious, in which case it needs to be inferred more cogently from relevant facts. It’s usually necessary to show there has been an opportunity to copy (such as access to the original work) but, in the case of well known songs, this is less of a burden. In the case of Stairway to Heaven, much is also being made of Plant and Page’s track-record of apparent light-fingeredness when it comes to other musician’s oeuvres.
Third, even a bad case might be worth bringing, if only for the publicity. We aren’t sure how many times Amazing had been listened to on Youtube before last week, but we’re pretty certain it’s a better known song as a result of all the press coverage. (And, may we say, we quite like it – we certainly prefer it to Mr Sheeran’s offering.) We’re not suggesting that this is the sole motivation behind the law suit, but we’re reminded of Baigent v Random House where Dan Brown was sued over The Da Vinci Code. The claimants got nowhere very fast (to no one’s real surprise) but it did no harm to sales of their own book which had thitherto languished in relative obscurity. Just saying.
We often reckon copyright gets a bit overlooked: because we’re all consumers of books or films or songs, it can seem easy enough at first sight (compared to, say, a patent dispute where the subject matter can be mindbogglingly difficult), but copyright law is actually surprisingly complex and subtle. It doesn’t help that US disputes are regularly decided by juries – 12 ordinary non-experts susceptible to clever tactics deployed by highly experienced (and highly paid) trial attorneys. Expect long trials and multiple appeals. While we’re waiting, we can’t help but notice that Amazing contains the lyric ‘the stairway to heaven oh it starts in hell’ – anyone got the number for Led Zep’s lawyers?