I’m sure you all can tell by now, I’m the legal lady. It’s kinda my niche. My apologies if you find it boring, but it’s all I know :). So, I wrote a post a few months ago about the importance of artists protecting their craft legally. That’s where the area of intellectual property law comes in. That’s where you have your copyright, trademark and patent laws. In that post I gave the years for how long such protection lasts. Copyright law is the only thing that’s relevant to this post and just for quick review; a copyright is valid until 70 years after the death of the copyright holder.
Why is this important? In the music industry a common practice is “sampling.” We all know what sampling is and how easy it is to spot it in music today. In order to get legal permission to sample, an artist MUST enter into a licensing agreement with the copyright holder. A licensing agreement is as simple as it sounds. The artist and the copyright holder strike a deal for the artist to sample some portion of a copyright holders work (whether that be lyrics, beats or the sound recording itself). For example, Kanye’s camp entered into any agreement with Chaka Khan’s camp to use the sound recording from her “Through the Fire” song. No harm, no foul. Valid agreements ensure everyone gets paid and the music is still made.
Where the problem has come in lately in the music industry is with the copyright holders being heirs of a deceased artist’s estate. Obtaining a licensing agreement from family has proved time and time again to be almost impossible. And remember, the copyright lasts until 70 years AFTER the death of the copyright holder. So, without their permission there is absolutely nothing you can do, but wait. Which brings me to the point of this article…the hardest family to “win over” is Marvin Gaye’s (or anyone associated with them). Just ask Pharrell and Robin Thicke. After sampling “Got to Give it Up” in “Blurred Lines” (there are allegations there was no sampling, but outside of minor musical litanies, the instrumentals are pretty much identical) Thicke and Pharrell lost in court and were forced to pay the family $7.3 million dollars as a result of their copyright infringement.
In true nerd fashion, I get updates on what’s happening in the entertainment and fashion law world sent to my phone. This morning the heirs of Ed Townsend (I have no doubt Marvin Gaye’s family will be joining in soon) a co-writer of Marvin Gaye’s famous “Let’s Get it On,” filed suit in a New York Federal Court against Ed Sheeran (and some writers and label reps). They are claiming Ed Sheeran’s song “Thinking Out Loud” “stole the harmonic progressions and melodic and rhythmic elements that make up the heart of the Marvin Gaye classic.” Townsend’s heirs go on to say all the success Sheeran had “was off the back of ‘Lets Get it On.’” The heirs conclude that because Ed often performs the two songs together, he is consciously aware that he is infringing on their copyright.
Quick music lesson. Excluding sharps and flats, the musical alphabet is composed of only 7 notes. A-G. That’s it. There are 5 basic types of notes: (1) a sixteenth note, (2) an eight note, (3) a quarter note, (4) a half note and (5) a whole note. There are only a few ways to change the musical value of these notes (I’ll spare you and not dig into that). Meaning there are not that many harmonic, rhythmic and melodic variations available to you as a musician. I said all that to say…they are reaching. Legally, just because something is similar does not mean it’s a copy, in regards to copyright infringement. If I were Ed’s attorney, that would be the foundation of my defense. Ed Sheeran is not the first artist to perform a song live that may be in the same key is one of their own. Artists do it all the time. Normally it’s within a medley because it’s just easier to perform. When they sound the same (usually when they are in the same key) the musician’s job is that much easier.
I think the suit is bs. “Blurred Lines” was almost an exact copy. This?!? Not at all. Not enough to sue someone saying they violated your artistic freedoms without your permission. But of course this is about money. The family believes they are entitled the payment of royalties made for the “more than 3 million copies [of Ed Sheeran’s hit] sold in the U.S. and the U.K. and for the more than 1 billion views of the music video on Youtube.” I’m definitely interest to see how this all plays out.