Six years after Ed Sheeran first received notice of an alleged copyright infringement for his hit song 'Thinking Out Loud', a jury in New York, USA has found in his favour, ruling that the songwriter is not liable for copyright infringement.
The action was first raised in 2018 by Structured Asset Sales ("SAS"), who had acquired a proportion of Ed Townsend's estate, the co-writer of Marvin Gaye's hit song 'Let's Get it on'. It was alleged that Mr Sheeran and his co-writer had "copied and exploited, without authorisation or credit" the song of Let's Get It On, "including but not limited to the melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping" and SAS were seeking $100 million in damages.
This isn't the first action Ed Sheeran has faced with regard to copy right infringement. In 2022, Sami Chokri and Ross O'Donoghue argued that his infamous song 'Shape of You' amounted to copyright infringement of their song 'Oh Why'. In that particular case, Ed Sheeran himself took the stand to perform renditions of various pop songs, including 'No Diggity' by Blackstreet and 'Feeling Good' by Nina Simone in order to demonstrate to the court that those songs, as well as Shape of You and Oh Why, when put in the same key, sounded the same. It has been pointed out by Ed Sheeran himself there are only 12 notes available and so similarities are likely to arise as a result of coincidence. When the action concerning Thinking Out Loud reached court Ed Sheeran (worryingly for all his fans!) vowed to stop writing music if he was unsuccessful in the action. Luckily, we can all rest easy for now.
However, Ed Sheeran has himself commented on the fact that copyright claims in music are arising more and more frequently. With that in mind, we thought it useful to consider which intellectual property rights can be relevant for artistic and literary works and how the people and businesses associated with the creation of such works can best protect their interests.
What is copyright?
Unlike other intellectual property rights, such as trade marks, which require to be registered before they come into existence, copyright arises automatically as soon as an original piece of creative material (for example, literary, artistic, dramatic or musical works) is created. Therefore, anything from an original novel, a painting to a song lyric can be protected by law of copyright. In the UK, the law of copyright is regulated by the Copyright, Designs and Patents Act 1988.
Copyright essentially provides the right holder with an exclusive right to copy the work and issue copies of the work to the public, or, in the case of dramatic or musical works, play or perform the material for others. By extension, this also gives the copyright holder other ancillary rights, such as to obtain royalties from performances or distribution of the works, as well as have creative control or an ability to dictate how the works are replicated or displayed by third parties.
How long does copyright last?
Now that we know Ed Sheeran has been successful in defending the case of copyright infringement relating to Thinking Out Loud (as he was previously in defending the case concerning 'Shape of You'), it is important to consider how long his copyright will endure for.
Copyright ordinarily lasts for 70 years after the author's death. However, there are some exceptions such as broadcasting which expires 50 years from the end of the year in which the broadcast was made (see s.12-15 of the Copyright Designs and Patents Act 1988 for a full list of exceptions). Once the copyright surpasses the prescribed period it enters the public domain, and the owner then loses their exclusive rights.
What other forms of intellectual property may be relevant for businesses associated with creative works?
Some of the biggest and most successful commercial businesses in the world were derived from creative ideas that turned into literary or dramatic works. The most obvious example may be Disney, which has built up a world-wide brand following the creation of Mickey Mouse and Snow White and the Seven Dwarfs. It is not uncommon for those behind creative materials to build up revenue streams associated with it. For example, Harry Potter novels are protected by copyright but 'Harry Potter', 'Gryffindor'' Hufflepuff' and 'Hogwarts', for example, are all registered trade marks, offering the holders of those trade marks protection against the sale of unauthorised associated merchandise. Trade marks confer an exclusive right on the holder to use the mark/logo/name or other form of distinctive feature in their product, preventing other businesses from taking advantage of the reputation or goodwill that they have established in association with the mark. Trade marks are generally granted for an initial period of 10 years in the UK. Thereafter, the trade mark will required to be renewed for the holder to retain the benefit of their right to exclusive use.
It is estimated that Harry Potter books, toys and games have generated $15 billion since the brand's debut. Therefore, while protection of the creative work itself is paramount, it is important to consider whether any merchandise, names or logos associated with the creative works require protection. Having an all-encompassing brand protection strategy is key to protecting you or your business' commercial interests, as it provides the legal protection required to take necessary action against any infringing activity, including copycat products or goods which may seek to undermine your business' reputation.
If you would like to speak to one of our experts about designing or enforcing your organisation's brand protection strategy, please get in touch with a member of the IP, Technology & Data team or your usual contact at Brodies.