Simon Goodbody comments in The Times re the recent Ed Sheeran High Court ruling

Partner Simon Goodbody comments in The Times re the recent Ed Sheeran High Court ruling and what this means for claims of this nature in the future.

Simon’s comments were published in The Times, 14 April 2022, and can be found here and on page 55 of the print edition.

“Regrettably, the practice of advancing ‘nuisance value’ claims in the hope of extracting money in settlements has become all too common. The practice is predicated on the understanding that court claims are time consuming, stressful and expensive – and that it is often much easier to settle the claim, irrespective of its merits.

If the trend is to change, rightsholders must take a firm stance in response these types of claims (as Ed Sheeran, Johnny McDaid, Steve Mac and their respective publishers have done in the Shape of You litigation). It is only when the expectation of those advancing claims of limited merit shifts away from the idea of a quick ‘pay day’ that we will see tide turn.”

“Copyright infringement claims have been more prevalent in the years following the now infamous ruling by a U.S court in 2015 that Robin Thicke and the co-writers of his song Blurred Lines had infringed the copyright in Marvin Gaye’s 1977 hit Got to Give It Up (in which Thicke and his collaborators were ordered to pay Marvin Gaye’s estate USD$7.3 million, in part since the “groove” and “feel” of the recordings of each composition were said to be aspects of similarity or commonality).

In the year before the Shape of You trial, Bray & Krais acted for the writers and publishers of the number one hit ‘Waiting All Night’ by the group ‘Rudimental’. In common with the Shape of You case, that litigation involved (i) a successful track, (ii) a relatively unknown songwriter, and (iii) short sections of the two compositions which sound similar in isolation (but do not indicate copying has taken place). This is typical of the types of claims which have become more prevalent in recent years.”

“Copyright should be regarded as a shield and not a weapon. A person posting their own works online should not be concerned that they are somehow diminishing the protection afforded to those works. Copyright subsists in an original work from the point of its creation, irrespective of whether or not it is exploited publicly. On the other hand, it is important that we all respect the copyright works of others. Those posting material online which borrows without permission from the works of others may find themselves in hot water!

Ed Sheeran has spoken recently about the fact that he now records his songwriting sessions so that he has evidence of the independent creative process which was undertaken. That is a sensible practice which is available to more established artists. But it is something that amateur songwriters may also learn from. My (somewhat tedious) advice to those starting out, is to keep your voicenotes, lyric doodles and any other records of the creative process. You never know when you may need it.”

“Copyright is to be celebrated. It is part of a suite of intellectual property rights which support the arts and creative endeavours generally. Copyright law must evolve as we find new ways to exploit rights, in the natural world and in the metaverse; but it does not require immediate reform. It is more important that we keep under review the court process which facilitates infringement claims to make sure that a healthy balance is maintained between the need for access to justice and accountability for the damage caused when baseless claims are advanced against innocent parties.”