Recently, the question of the extent to which composers should be allowed to borrow parts of works that have been created before, as well as how much of the song is “owned” by the composer, increased its relevance. In this regard, the trial between Griffin (heir to one-third of the royalties of the song “Let’s Get It On”) and Sheeran is current in New York this spring, the subject of which is whether Sheeran illegally copied a part of the song “Let’s Get It On” during the creation of his “Thinking Out Loud”.
Griffin tried to inform Sony that the song “Thinking Out Loud” contained the entire music with only changed lyrics, but she thought that Sony was probably not interested because it was also the publisher of this song. However, Sony hired private musicologists to examine the similarity between the two songs and reportedly found no copyright infringement. For these reasons, since Sony is on both sides of this dispute, it must maintain its neutrality.
In the United States, in copyright infringement cases, similarities are judged by two types of individuals, professionals and laypersons. Professionals are engaged as experts at trials, and the jury is a lay listener (this is the so-called Arnstein test from the Arnstein v. Porter case of 1946).
Given the fact that the song “Let’s Get It On” was recorded before 1978, the Copyright Act of 1909 applies to it, which presupposes that the work had previously been registered with the Copyright Office in Washington D.C. as a deposited copy. This means that the jurors will have to review all five pages of music for the song “Let’s Get It On” containing lyrics, melody and chords.
Although works as a whole are considered to be subject to copyright protection, it should be noted that the composer has the right to “ownership” of a particular expression or arrangement of a musical idea, not the idea itself. The question that arises from a legal point of view is how to separate these two concepts.
In this particular case, the separation is particularly difficult because Sheeran is very adept at combining his songs with songs of other artists. He often does this independently and at his concerts, but sometimes also at the request of the audience.
It should be noted that Sheeran is often accused of copyright infringement of other artists` works and it is considered that the reason why he is so fast in creating his songs is because these songs are already created by others and he is simply “copying” them.