Plagiarism in music – and why it’s really no good thing to see Ed Sheeran sued to the tune of $100m

Plagiarism really isn’t such a complicated concept, succinctly and simply defined as “the practice of taking someone else’s work or ideas and passing them off as one’s own”. But as neat as the Oxford Dictionary’s summation may be, identifying what constitutes theft in the artistic sphere has historically proved a distinctly slippery proposition. When is coincidence in fact collusion? Who can say when unconscious inspiration becomes considered imitation?

These questions are taking on pronounced pertinence following a rash of high-profile legal challenges against some of the biggest names in pop and rock. Ed Sheeran is back in the news (did he ever leave?) defending a $100 million lawsuit claiming uber-smash Thinking Out Loud lifts from Marvin Gaye’s Let’s Get it On. Yes – the same ghost of Gaye which successfully sued Robin Thicke and Pharrell to the tune of $7.4m for Blurred Lines’ undeniable, but evasive, resemblance to Got to Give it Up.

Sheeran – the best-selling global artist of 2017 – hasn’t exactly worked to hide his sources, known to medley into Let’s Get it On from Thinking Out Loud. Nor is it his first time under the spotlight: in January two songwriters, Sean Carey and Beau Golden, also targeted the Thinking Out Loud – a UK number one with more than a billion streams on Spotify – while in June 2016 Sheeran was served $19 million lawsuit claiming his 2014 hit Photograph plagiarised X-Factor winner Matt Cardle’s 2012 single Amazing, which settled out of court for an unknown sum.

The holy grail of plagiarism cases came from the same year, when Led Zeppelin were cleared of ripping off the intro of their 1971 rock epic Stairway to Heaven from Spirit, an American band that supported the British behemoths three years before the song was released.

The battle was clouded by arguments of faded memories, musical conventions and happy coincidence. Perhaps the only thing clear from each case is that today musical plagiarism has become big business.

For this, we can definitely blame the Thick/Pharrell vs Gaye showdown, which set a worrying precedent – kickstarting an age of songwriters running scared and pre-emptively showering would-be challengers with co-writing credits from the off (such as Taylor Swift’s unlikely nod to Right Said Fred’s hit-writers on Look What You Made Me Do, while Vampire Weekend’s Ezra Koenig wound up with a credit on Beyoncé’s Hold Up).

The considerable controversy created was not just over the size of the claim, but its very nature. The two tracks are undeniably similar – but melodically, Gaye’s Got to Give it Up has little identical notation with Blurred Lines. What it shared was a feel, a vibe, a groove. Thicke and Pharrell’s effort can be best described as a Gaye tribute, or parody.

Which should strike fear into the heart of any songwriter working today. Throughout musical history, performers have borrowed forms from one another – the folk and blues traditions evolved through a proliferation of familiar chord progressions and melodic turns. Got to Give it Up is regarded as a key influence on the emergence of disco – and one cannot copyright the sound of a genre.

More so than narrative art – which comes complete with plot-lines and themes – declaring plagiarism in music is particularly perilous. The ordered arrangement of sounds, drawn from a 12-note scale, is both as mystical as it is scientific. But in musical, rather than lyrical composition, no such clarity is possible.

Songwriters often characterise their craft akin to divine inspiration – “I’m just the postman”, Bob Dylan famously crowed – and it’s not entirely implausible that two minds are delivered the same package. The oft-quoted idea that if you gave a group monkeys a typewriter, eventually they would “by chance” replicate the complete works of Shakespeare, seems far-fetched. But hand primates a glockenspiel, and the chances of them knocking out the three-note riff that drives (I Can’t Get No) Satisfaction, or those timeless four notes which begin Beethoven’s Fifth Symphony, sound rather more plausible.

According to US copyright, claimants in cases of musical plagiarism must prove both “access” – that the alleged plagiariser heard the stolen source – and musical “similarity”. In the case of Led Zeppelin, songwriter Jimmy Page’s defence relies on his claim he never heard Spirit’s Taurus, despite the fact its parent album was found in the guitarist’s (admittedly vast) record collection.

Having performed Let’s Get it on live, it’s impossible Sheeran can make the same claim.

Claims of musical plagiarism are by no means a modern phenomenon – acts from The Beatles and The Beach Boys onwards have all fallen foul – but past settlements were more often made out of court. In 1971, Johnny Cash offered $75,000 to Gordon Jenkins for ripping off 1955’s Folsom Prison Blues from the earlier Crescent City Blues.

At the height of their 1970s success, Led Zeppelin became almost experts at paying off the raft of blues musicians who pointed out musical smash and grabs, with Sonny Boy Williamson and Willie Dixon among the worthy beneficiaries – the under-acknowledged blues pioneers reaping a much-deserved sliver of reward from the British white rockers who appropriated much of their sound.

But today, things have got out of hand. The present Sheeran situation leaves us in a prickly spot – and, as little as he needs the money, I really hope the little ginger guy wins. Because the one thing clearer than any of the cloudy musical arguments, is that we have little to gain from songwriters living in fear.

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