Tuesday 27 June 2023

Thinking Out Loud: A Musical Guide to Copyright

Copyright law in Australia protects the intellectual property rights of those who create original works. The law provides creators with exclusive rights over their work. For instance, it allows them to prevent others from copying or using their work without permission. In recent years, there have been several high-profile disputes over copyright claims in music; most recently, the high-profile dispute between British pop star Ed Sheeran and the estate of Marvin Gaye. This article will provide a breakdown of the case and a brief guide to copyright in the music industry.

The Case of Marvin Gaye v Ed Sheeran

Marvin Gaye’s “Let’s Get It On” was released in 1973 and became an instant classic. The song has been covered and sampled numerous times.

In 2014, Ed Sheeran released “Thinking Out Loud” with a chord progression similar to “Let’s Get It On.” The song was a worldwide hit, winning a Grammy for Song of the Year in 2016.

The lawsuit filed by the estate of Marvin Gaye alleged that Sheeran’s song “Thinking Out Loud” infringes on the copyright of “Let’s Get It On.” Specifically, the lawsuit alleged that the melody, harmony, and rhythm of “Thinking Out Loud” were substantially similar to those of “Let’s Get It On” and that Sheeran copied these elements without permission.

Ultimately, the Court found that Ed Sheeran had not infringed the copyright in the song “Let’s Get It On”. But what does this mean, and what should musicians be mindful of when it comes to copyright?

What is Copyright, and What Parts of a Song Are Protected?

The Copyright Act 1968 (the Act) governs copyright law in Australia. The Act provides creators of original works with exclusive rights to their work, including the right to: 

  • reproduce; 
  • publish; 
  • communicate; and 
  • adapt the work. 

These rights give creators a measure of control over their work and encourage the creation of new works.

Regarding music, copyright arises when a composer creates an original melody, harmony, or rhythm. The composer becomes the owner of the copyright in the music they create. 

Copyright in music is not just limited to the musical composition itself. There is also copyright in the lyrics (if any) and in any music recordings. This means that the person who creates the lyrics or who records the music also has a copyright in their respective contributions.

When is Copyright Infringed?

To establish copyright infringement in Australia, you need to demonstrate:

  • you are the owner of a valid copyright in the work;
  • the other party has copied a substantial part of the work; and
  • the copying was done without your permission or authorisation.

What Constitutes as ‘Substantial’?

It is the second element that is the most difficult to demonstrate. The term “substantial” in this context means that the infringing work copies a significant portion of the original work, whether in terms of: 

  • melody; 
  • lyrics; 
  • harmony; 
  • rhythm; or 
  • other elements of the composition. 

What is ‘substantial’ will depend on the facts of each case. However, the tests to apply in determining if there has been a substantial reproduction of copyright include: 

  • if the part is essential, having regard to the work as a whole;
  • whether it is an essential or material part; and
  • if there has been an appropriation of the essential features and substance of the plaintiff’s work.

When it comes to music, considering whether a “substantial” part has been copied involves analysing whether the part of a song that has been copied is a recognisable and memorable melody, riff, or some other musical element that is an essential and distinctive feature of the original song.

Ultimately, determining whether a part is substantial depends on the specific circumstances of each case, including the nature and significance of the copied material and the overall similarities between the two works.

Key Takeaways

Copyright is an automatic right attached to original pieces of artistic works, including musical works. These rights give creators a measure of control over their work and encourage the creation of new works.

If you have any questions about your intellectual property rights, our experienced intellectual property lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.

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