Songwriters and music fan should beware Ed Sheeran’s plagiarism case

An old, debunked myth once suggested that human beings only use around 10 per cent of their brain at any one time. The rest, presumably, was too busy memorising snippets of every obscure song we’ve ever heard in passing for possible future use. Or so you’d think, from the plethora of plagiarism lawsuits flying around pop world at the moment.

Dua Lipa recently faced a second plagiarism claim over her 2020 track ‘Levitating’. Songwriters L. Russell Brown and Sandy Linzer have claimed that the opening melody is ripped off of sections of their tunes for both Cory Dale’s 1979 song ‘Wiggle And A Giggle All Night’ and Miguel Bosé’s 1980 number ‘Don Diablo’, which – if true – would make Lipa and her songwriting partners the most formidable pop quiz team on the planet.

Acts including Olivia Rodrigo, Justin Bieber, Nicki Minaj, Will.i.Am, The Weeknd and Childish Gambino have all faced similar claims in the past few years, and in 2020 Peppa Pig was absolutely roasted in court over claims she’d nabbed the melody of ‘Peppa Party Time’ from Louise Redknapp’s ‘Naked’. Thankfully Peppa didn’t also swipe any of the lines about “sensuality” and “undressing me with your eyes”.

And, of course, Ed Sheeran is currently awaiting the outcome of the high-profile case from grime act Sami Switch (aka Sami Chokri) and his songwriting partner Ross O’Donoghue over alleged similarities between the “oh I, oh I” section of ‘Shape Of You’ and Chokri’s 2015 song ‘Oh Why’. Effectively boiling down to a judge deciding if anyone can legally own the pentatonic scale, the case has drawn a great deal of attention due to the numbers involved: $20 million of royalty assets due to Sheeran and the song’s co-writers have been frozen by PRS until the case is decided, and around $5 million a year income from the song is up for grabs. Recreating a builder’s wolf-whistle in an R&B style, it turns out, is big bucks.

With Sheeran singing Nina Simone’s ‘Feeling Good’ in court as evidence of the common use of one of pop’s most standard melodic runs, and openly admitting to worrying about the section’s similarity to Blackstreet’s ‘No Diggity’, it seems there were plenty of other, far better-known places Sheeran could have nicked the part from, so much depends on whether Chokri and O’Donoghue can convince the court that Sheeran had ever heard the song before. They claim they’d sent a tape of the song to him in the hope of gaining his approval, but as any of my cousins’ dentists who are in shit bands will tell you, getting your music handed to a very busy person in the music industry doesn’t mean they’ll actually bother to listen to it.

It’s a difficult outcome to predict. On one hand, Sheeran has had to shell out over plagiarism claims before, settling a £16 million lawsuit from Matt Cardle over his track ‘Photograph’ in 2015. On the other, the fact that his team had approached TLC ahead of the release of ‘Shape Of You’ to arrange an agreement over its likenesses to ‘No Scrubs’ suggests that Sheeran plays it pretty damn safe at the pick’n’mix of pop these days.

Whatever the verdict, the case is testament to the vast chasm that has opened up in music between the have-loads and the have-nowts. So heavily weighted is streaming income towards a few dominating acts, and so meagre the gruel dished out to the vast majority, that frivolous plagiarism lawsuits are becoming a viable alternative for struggling acts to actually striking it big themselves. It’s like the French Revolution, featuring T-Pain.

Successful musicians are clearly entering a perilous period when it comes to copyright claims. The definitions of musical plagiarism were blown wide open by Marvin Gaye’s estate successfully suing the writers of Robin Thicke’s ‘Blurred Lines’ for copying the “feel” of ‘Got To Give It Up’. Meanwhile, the huge boom in self-released music – 60,000 songs are uploaded to Spotify every day – has meant vast torrents of songs are gushing into the public domain, any one of which might bear a minor resemblance to any formative tune that Charli XCX might hum to herself in the bath.

If Sheeran loses his case, each monster hit might soon become a financial feeding frenzy, as swarms of sonic piranhas descend to nibble off their ‘rightful share’. It could become a musical lottery – “who’s got A minor into C with the bonus words ‘hey’ and ‘baby’? Come on down!”

It would certainly pay for new songwriters to carpet bomb the management offices of major acts with email links to their music, just in case they end up, by chance, writing anything with a vaguely similar chord progression. And it would become wise industry practice for major artists to provably shut themselves off from all music other than their own – no streaming, no collaborating, soundproof dressing rooms at festivals and so on – to protect their future income.

Or, y’know, everyone could take a leaf out of Elvis Costello’s book. “It’s how rock & roll works,” he tweeted when the similarities between his ‘Pump It Up’ riff and Olivia Rodrigo’s ‘Brutal’ were pointed out to him online. “You take the broken pieces of another thrill and make a brand new toy. That’s what I did.”

Ditto Oasis, Elastica, Led Zeppelin and many other acts that recognise that music is a shared, evolving experience. It’s important that there are copyright protections in place to stop major acts with no ideas simply plundering the oceans of streamed music with impunity, and lifting entire melodies or lyrics wholesale from unknown tracks is undoubtedly the work of a scoundrel and a cad.

But before you fire off that no-win-no-fee plagiarism claim over a couple of notes, struggling songwriters, perhaps stop and ask yourself: what are you really in this for?

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