A slew of bitter copyright infringement cases brought against songwriters is forcing artists to purchase errors and omissions insurance, or risk legal battles and expensive payouts. By Alex Gow.

Songwriters living in fear of ‘stupid lawsuits’

Marvin Gaye in the studio, circa 1974.
Marvin Gaye in the studio, circa 1974.
Credit: Jim Britt / Michael Ochs Archives / Getty Images

Lucas Keller describes it as a form of the inevitable. He says, “I’ve just kind of accepted in my life: death, taxes and copyright infringement lawsuits are the three guaranteed things.”

Keller is the Los Angeles-based president and founder of Milk & Honey, an international entertainment company that represents some of the world’s most successful contemporary songwriters, producers and artists. At time of writing, he is fighting “eight stupid lawsuits”.

These suits are increasingly a part of life for musicians. If a song is big enough, it is at risk of a suit – valid or not. Some artists are now taking out insurance against these claims.

In the recent past, acts including Ed Sheeran, Katy Perry, Dua Lipa and Led Zeppelin have all defended bitter copyright infringement cases. This type of litigation not only affects these performers but the songwriting community that works in collaboration with them.

In 2022, copyright infringement cases in the commercial pop music landscape are commonplace and, for some, inevitable. “It seems like if you’re going to have a hit, you’re going to have a lawsuit,” entertainment lawyer Ed McPherson says from his Los Angeles office. “Put it this way, after the ‘Blurred Lines’ case came down, they were definitely trending up.”

The ruling McPherson refers to relates to the 2015 case filed by the family of Marvin Gaye against the songwriters of “Blurred Lines”, Pharrell Williams and Robin Thicke. The song, which led the charts in 25 countries two years earlier, was ruled to have infringed on the copyright of Gaye’s 1977 single “Got to Give it Up”. After a jury decided that stylistic elements of “Blurred Lines” copied “Got to Give it Up”, Gaye’s family was awarded $US7.4 million, which was later reduced to $US5.3 million.

From there, the suits continued.

The practice of borrowing influence from the work of those who came before you is the most used tool in the songwriter’s tool belt. Melody begets melody. It is a heady, inspired process. After a short time, the writing room is filled with music and the excitement of creation itself. By the time a song is complete, it reveals little, if any, of its heritage. Yet in some form or another, the original sonic reference is fundamentally embedded in the new work. There of course exists a line where sonic referencing enters the world of copying unique ideas. Yet very few songwriters willingly cross that threshold. Even fewer do so with the expectation that their sins will not be punished down the track.

Last month, after a lengthy legal battle, British singer–songwriter Ed Sheeran published a video on his Instagram account reflecting on his win in a British plagiarism case over his song “Shape of You”. Justice Antony Zacaroli ruled that “Shape of You”, Spotify’s most-streamed song in its history, “neither deliberately nor subconsciously” copied elements from the claimant’s composition.

“Claims like this are way too common … it’s really damaging to the songwriting industry,” Sheeran said, adding: “Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. There are 22 million songs a year and there are only 12 notes that are available.” Sheeran describes it as a simple numbers game: conscious or subconscious similarities between new and old works are as inevitable as the lawsuits these very similarities inspire.

The recent slew of copyright infringement lawsuits is “disruptive” to the creative process, adds songwriter Steven Solomon, co-writer of James Arthur’s 2016 chart-topping “Say You Won’t Let Go”. From his home in Los Angeles, Solomon elaborates: “It sucks because it distracts you from creating … It shouldn’t be the main forethought in your head the day you’re trying to create something.”

Lucas Keller fears not only the stifling of the creative process but the destruction of music more broadly. “The question is, is this going to be a job? What if I make something, I have 50 per cent of something, and by the end of all the lawsuits, I have 3 per cent of it?”

Lawyers and plaintiffs who bring this type of litigation stand to gain from settlement. In fact, Keller suggests they rely on it: “The defendant has to go out, hire a lawyer for a thousand bucks an hour – oh, wait, we’re in Los Angeles, so it’s a thousand dollars an hour for a senior partner, and then two junior partners at 500 an hour, so now you’re billing 2000 dollars an hour. And you get to a quarter-million bucks in litigation and you’re like, ‘Oh my god, I can’t stand it anymore. Let’s settle.’ ”

In an attempt to protect his writers from this very scenario, Keller encourages the artists on the Milk & Honey roster to purchase errors and omissions insurance. Solomon went through what he describes as a dark time after “Say You Won’t Let Go” faced a copyright lawsuit, brought and later won by the Irish rock band The Script. Solomon still maintains the hit song is clean, and now with the backing of E&O insurance he laments not taking out a policy prior to its release. “I wish I had copyright insurance all along, but also copyright insurance is expensive.”

Solomon’s relationship with his insurance policy is complicated. “I think it’s absolutely absurd that it’s something that should be considered,” he says, “but it absolutely should be considered.”

The increasing number of E&O policies being sold to musicians speaks to the potency of risk in copyright infringements felt by songwriters.

Among the throng of copyright lawsuits, though, there are instances of civility. Last year Bobby Gillespie of Primal Scream graciously celebrated the similarities in style between New Zealand-born pop artist Lorde’s single “Solar Power” and Primal Scream’s genre-defining “Loaded”.

The nature of those similarities might have had Richard Busch, the “Blurred Lines” plaintiff attorney, licking his lips. Yet Gillespie opted to induct Lorde into the School of the Scream, rather than pursue litigation.

The practice of professional songwriting following the “Blurred Lines” decision is a paranoid shadow of its former self. Writers are reticent to vocalise the employment of musical referencing. “People are absolutely afraid of what they say in the writing room,” Keller says, “because in a deposition people have to be honest about what was said in the room. That’s a real issue.”

Ed McPherson adds, “What songwriter now is going to give their credits out? Basically say who they were inspired by, if just that inspiration is going to get them liability in a copyright case?”

The impact on the future of the songwriting profession remains unknown. Recent wins for the likes of Sheeran, Katy Perry and Led Zeppelin point to an American legal system that is finally beginning to understand the minutiae of the creative process and the professional stakes of their decision-making. However, inevitable developments in artificial intelligence technology will make it terribly simple for any prospective litigator to flag musical similarities in more recent works. This prospect threatens to saturate an already inundated industry with further lawsuits.

When asked to speculate on a future where the current state of copyright infringement lawsuits remains status quo, Keller says, “I think opportunist son-of-a-bitch lawyers and [AI] technology are the two things that are going to make this worse. And then the third thing just being the exponential increase in the amount of content. You know, songs. I think where those three things intersect, we’re in trouble.”

When songwriters are denied the freedom to honour the spark of inspiration, when their work is cut down before reaching its potential due to the fear of being sued, everyone loses. Society is denied the intrinsic potential for music to inspire, compel and affirm.

This article was first published in the print edition of The Saturday Paper on May 21, 2022 as "Sound and fury".

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Alex Gow is an ARIA Award-winning songwriter and producer on 7am.

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