Intellectual Property – When creators go for a song

Singers Ed Sheeran, Sam Smith and Dua Lipa may be top of the pops, but they are all facing lawsuits alleging they have lifted song elements from other artists. 

Sheeran is being challenged in the English courts over his 2017 hit Shape of You; Dua Lipa faces two lawsuits in the USA; and Sam Smith, the artist who penned a James Bond theme, faces action in Los Angeles over the song Dancing with a Stranger.

Said commercial property law expert  Miss Amy Cusworth  of Oxley & Coward Solicitors LLP:  “It may seem surprising that struggling artists are prepared to take on music giants like Sheeran, Smith and Lipa, but copyright challenges involving a song’s lyrics or melody regularly reach the courts.

“When a successful musician and substantial royalties are involved, the stakes are high, but protecting your work is an important lesson for all creators, whether you consider yourself an artist or an entrepreneur.”

Copyright is one way in which intellectual property can be safeguarded and the protection is automatic when an original work is created.  It does not involve making an application or being added to any register, unlike registering a trade mark, design or patent.  Original work can be marked with the copyright symbol © together with the creator’s name and year of creation, but use of the mark is not a requirement to obtain protection.

The law guards against original work being used by others without permission, whether in the creative arts, such as literature, drama, music, art, photography, or origination for commercial purposes, such as technical drawings or advertisements.  Items do not need to exist physically, and copyright will apply in the creation of software, web content or databases.  The protection extends also to recordings, broadcasts and layouts for written, dramatic and musical works.

Anyone who copies or makes use of an original work, whether passing it off as their own or sharing it with others without the permission of the original author, is likely to be infringing the originator’s copyright.  If the work is shared or adapted overseas, then it may be protected through international agreements such as the Berne Convention.

“Some breaches of copyright may be easier to identify than others,” explained Miss Cusworth.  “Any claim of infringement will need to go beyond demonstrating a material similarity to demonstrate a causal connection through which actual copying of the copyrighted work could have taken place.  When it comes to song writing, it’s not enough that the lyrics or melody may sound the same, there must be evidence of a direct link.

“Other more easily identified breaches include playing live or recorded music in public without a licence, or photocopying, scanning or printing off the content of a book or publication beyond the limit allowed for personal use, such as academic study.

“Another common breach is using a photograph copied from another organisation’s web site without permission.  Even if you modify an image you have found, it is still a breach of the original copyright, unless you have permission to do so.”

Obtaining permission, paying any usage fee and crediting an original author on the basis of an informal agreement may be feasible in some instances, but permission may involve entering into a formal contract or licensing agreement  which sets out the ways in which the original work can be used.  For example, permission and a fee to use a photograph may restrict its use to a particular medium, with further fees payable if used in other ways.

Added Miss Cusworth :  “If you haven’t already done anything to safeguard your work, your brand or concept, then it’s worth getting some expert advice about first steps in intellectual property protection.  If you’re unsure whether you have anything to protect, you can start by running through the IP Health Check on the Intellectual Property Office website.”


For more information – please contact the Oxley & Coward team:

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