May 31, 2018
The Irish band The Script has launched a copyright infringement claim in the US against the 2012 X Factor winner – James Arthur. This case is the next in a recent wave of US copyright infringement cases where popular artists have been accused of going too far in taking inspiration from previous artists work.
The Script are arguing that James Arthur’s 2016 hit song “Say You Won’t Let Go” infringes their copyright rights in their 2008 song “The Man Who Can’t Be Moved”. The details of the legal claim state that Mr Arthur approached The Script in 2014 with a view to working on a collaboration but that The Script turned Mr Arthur down. He then released his song in 2016 which The Script claim copies the “essence” of their 2008 hit. “Say You Won’t Let Go” marked a return to the limelight by James Arthur after controversial comments he made in 2013 and the subsequent “dropping” by his record label. “Say You Won’t Let Go” spent 52 weeks in the top 100 in the US, 3 weeks as number 1 in the UK and reportedly generated $20 million dollars (approximately £15 million) in sales.
The Script are represented by the same lawyer who represented Marvin Gaye’s estate in its successful lawsuit against Robin Thicke and Pharrell Williams where it was found that their 2013 hit song “Blurred Lines” constituted a substantial part of the copyright right work in Marvin Gaye’s song “Got to Give it Up” and therefore infringed the copyright in Mr Gaye’s copyright work. Damages of $5.3 million were awarded in this decision together with ongoing royalty payments of 50% of future revenue generated.
Billboard magazine have reported that fans have often commented on the similarity between the songs: noting that they “share the same 4/4 meter, have a similar tempo, four-bar guitar introduction and employ similar vocal melodies and harmonic structures.”
When discussing the similarities between the two songs last year, James Arthur said that there was “no case” to answer and added; “It’s 2017, there’s only seven notes in music…Every blues song sounds the fucking same. People get wound up about these things for no reason.”
This recent spate of copyright infringement cases in the US has attracted concern from artists warning that the ruling in the “Blurred Lines” case could stifle creativity and impinge on the creative process. All artists whether musicians or otherwise take inspiration from the world around them: they do not create in the vacuum. Billboard magazine reported that in 2016, Jennifer Hudson, Fall Out Boy, Linkin Park and 200 other artists filed a document to the appeals court noting their interest in the Blurred Lines case and, arguing, “[Artists] are concerned about the potential adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general, if the judgment, in this case, is allowed to stand.”
The crux of the case between James Arthur and The Script will likely rest on whether The Script’s legal team can successfully argue that a ‘substantial part’ of their copyright work has been copied by Mr Arthur. This is because in order to prove infringement of a copyright work, the claimant must establish that the defendant has copied the whole or a ‘substantial part’ of their copyright work.
In cases where the entire copyright work has been copied and therefore the copy is identical to the original work clearly the whole of the original work will have been copied and this will not be an issue. However, in this case, as is true in most copyright infringement cases, where it is alleged that a part of the earlier copyright work has been copied the claimant must establish instead that what has been taken by the defendant constitutes a ‘substantial part’ of their copyright work.
What constitutes a substantial part of a copyright work is not always clear cut and as such this is where the majority of the arguments between the parties are likely to focus. When assessing whether a ‘substantial part’ of a copyright work has been copied the claimant must show that quantitatively and qualitatively that the defendant has copied the ‘important parts’ of their earlier copyright work being their own original work.
We, along with the music industry, will eagerly wait to see whether a similar decision will be reached to the decision in the “Blurred Lines” case, which is currently seen as the high water mark for this type of case, or whether in the instance the US courts will adopt a more stringent approach to determining copying of a ‘substantial’ part.
Briffa advises on all areas of intellectual property rights protection and enforcement, including both contentious and non-contentious copyright law matters, such as ownership, infringement, licensing and assignment. Please contact us if you would like to discuss your intellectual property rights.
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