Singer/songwriters Ed Sheeran and Sami (Switch) Chokri are in court because of similarities between their songs.
How do we tell if one song is similar enough to another song to be considered copyright infringement?
- Do we let the judge or jury listen to the songs and decide whether they think they’re similar?
- Do we bring in music theorists to analyze the similarities of the songs?
- What if there are only a few measures that are same and everything else is different? Can that still be infringement?
- Does it matter if the accompanying lyric is also similar?
The dispute between Switch and Sheeran is largely based on a measure and a half with the same three pairs of notes rising a half-step each time. The measures are repeated throughout both songs.
Listen at 1:10 of this recording of Sheeran’s The Shape of You. The accompanying lyric is “Oh, I.”
Listen to Chokri’s Oh Why at 0:52 of this video. The accompanying lyric is “Oh, why.”
If you’re a prolific songwriter, what are the chances you’ll go through your entire career without using a riff that’s similar to a riff in a different song? Does it matter if the songwriter was conscious of the similarity?
If you find this as fascinating as I do, you should check out the Music Copyright Infringement Resource sponsored by George Washington University Law School and Columbia Law School. It has links to hear the songs from major copyright lawsuits together with analyses of the rulings.