Songwriters live in fear of ‘stupid lawsuits’
Lucas Keller describes it as a form of inevitability. He says, “I just sort of accepted in my life: death, taxes and copyright infringement lawsuits are the three things guaranteed.”
Keller is the president and founder of Los Angeles-based Milk & Honey, an international entertainment company that represents some of the world’s most successful contemporary songwriters, producers and artists. As of this writing, he’s battling “eight stupid lawsuits.”
These costumes are increasingly part of the lives of musicians. If a song is big enough, it risks being sued – valid or not. Some artists now take out insurance against these claims.
In the recent past, artists like Ed Sheeran, Katy Perry, Dua Lipa, and Led Zeppelin have all defended bitter copyright infringement cases. This type of litigation affects not only these performers, but the community of songwriters who work in collaboration with them.
In 2022, copyright infringement cases in the commercial pop music landscape are commonplace and, for some, unavoidable. “It looks like if you’re going to have a hit, you’re going to have a lawsuit,” entertainment attorney Ed McPherson said from his Los Angeles office. “In other words, after the ‘Blurred Lines’ affair, they definitely tended to go up.”
The ruling McPherson is referring to relates to the 2015 case filed by Marvin Gaye’s family against “Blurred Lines” songwriters Pharrell Williams and Robin Thicke. The song, which topped the charts in 25 countries two years earlier, was deemed to have infringed the copyright of Gaye’s 1977 single “Got to Give it Up”. After a jury ruled that stylistic elements of ‘Blurred Lines’ copied ‘Got to Give it Up,’ Gaye’s family was awarded $7.4 million, which was later reduced to $5.3 million .
From there, the pursuits continued.
The practice of borrowing influence from the work of those before you is the most widely used tool in the songwriter’s tool belt. Melody begets melody. It is an exhilarating and inspired process. Soon after, the writing room fills with music and the excitement of creation itself. By the time a song is finished, it reveals little, if any, of its legacy. Yet, in one form or another, the original sonic reference is fundamentally integrated into the new work. There is of course a line where sound SEO enters the world of copying unique ideas. Yet very few songwriters voluntarily cross this threshold. Even fewer do so in the hope that their sins will not be punished later.
Last month, after a lengthy legal battle, British singer-songwriter Ed Sheeran posted a video to his Instagram account reflecting his victory in a UK plagiarism case over his song “Shape of You.” Judge Antony Zacaroli ruled that “Shape of You”, Spotify’s most-streamed song in its history, had “neither deliberately nor unknowingly” copied elements of the plaintiff’s composition.
“Claims like this are all too common…it’s really damaging to the songwriting industry,” Sheeran said, adding, “A coincidence is inevitable if 60,000 songs are released every day on Spotify. There are 22 million songs a year and there are only 12 notes available Sheeran describes it as a simple numbers game: the conscious or unconscious similarities between new and old works are as inevitable as the lawsuits that those same similarities inspire.
Recent spate of copyright infringement lawsuits ‘disrupts’ creative process, adds songwriter Steven Solomon, co-writer of chart-topping James Arthur’s ‘Say You Won’t Let Go’ 2016. From his home in Los Angeles, Solomon clarifies, “It sucks because it stops you from creating… That shouldn’t be the main foresight in your head the day you’re trying to create something.
Lucas Keller fears not only the stifling of the creative process but more broadly the destruction of music. “The question is, is this going to be a job? And if I do something, I get 50% of something, and at the end of all the trials, I get 3%?
Lawyers and plaintiffs who bring this type of litigation have everything to gain from a settlement. In fact, Keller suggests that they rely on it: “The defendant has to go out, hire a lawyer for a thousand dollars an hour – oh wait, we’re in Los Angeles, so it’s a thousand dollars of the hour for a senior partner. , and then two junior partners at 500 an hour, so now you’re charging 2000 dollars an hour. And you come to a quarter of a million dollars in litigation and you’re like, ‘Oh my god, I can’t take it anymore. Let’s arrange. ”
In an attempt to protect its writers from this very scenario, Keller encourages artists on the Milk & Honey list to purchase errors and omissions insurance. Solomon went through what he describes as a dark time after “Say You Won’t Let Go” faced a copyright lawsuit, brought and later won by Irish rock band The Script. Solomon still maintains that the hit song is clean, and now, with the backing of E&O insurance, he laments that he didn’t take out a policy before its release. “I wish I had copyright insurance all along, but copyright insurance is also expensive.”
Solomon’s relationship with his insurance policy is complicated. “I think it’s absolutely absurd that it’s something that should be considered,” he says, “but it absolutely needs to be considered.”
The growing number of E&O fonts being sold to musicians is a testament to the power of the risk of copyright infringement felt by songwriters.
Among the host of copyright lawsuits, however, there are cases of civility. Last year, Primal Scream’s Bobby Gillespie graciously celebrated the stylistic similarities between New Zealand pop artist Lorde’s single “Solar Power” and Primal Scream’s genre-defining “Loaded.”
The nature of these similarities might have had Richard Busch, the attorney for the “Blurred Lines” plaintiff, licking his lips. Yet Gillespie chose to induct Lorde into the Cree School, rather than pursue litigation.
The practice of professional songwriting following the “Blurred Lines” decision is a paranoid shadow of itself. The authors are reluctant to vocalize the use of musical references. “People are absolutely afraid of what they say in the writing room,” Keller says, “because in a deposition, people have to be honest about what was said in the room. That’s a real problem.
Ed McPherson adds: “Which songwriter is going to give credits now? Basically, say by whom they were inspired, if this inspiration will earn them a liability in a copyright case? »
The impact on the future of the songwriting profession remains unknown. The recent victories of Sheeran, Katy Perry and Led Zeppelin indicate an American legal system that is finally beginning to understand the details of the creative process and the professional stakes in their decision-making. However, the inevitable developments in artificial intelligence technology will allow any potential litigant to point out musical similarities in more recent works. This prospect threatens to saturate an industry already awash with new lawsuits.
When asked to speculate on a future where the current state of copyright infringement lawsuits remains the status quo, Keller said, “I think the opportunistic lawyers and sons of bitches [AI] technology are the two things that will make the situation worse. And then the third thing being just the exponential increase in the amount of content. You know, songs. I think where those three things intersect, we have problems.
When songwriters are denied the freedom to honor the spark of inspiration, when their work is curtailed before reaching its potential due to fear of being sued, everyone loses. Society is deprived of the intrinsic potential of music to inspire, compel and affirm.
This article first appeared in the print edition of The Saturday Paper on May 21, 2022 under the headline “Sound and fury”.
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