The discussion over musicians writing songs that infringe on previous songs from other artists has been topical over the past few years. There has been high-profile litigation over the issue in the US, firstly between Pharrell Williams and the family of Marvin Gaye, and then more recently with the Led Zeppelin ‘Stairway to Heaven’ litigation. Such discussion has resurfaced this week with comment in the press over Little Mix’s performance of their new single ‘Shout Out to My Ex’ on The X Factor at the weekend.
As with the previous two cases, there has been much discussion on social media about whether copying has taken place, with fans comparing the Little Mix single with G.R.L.’s ‘Ugly Heart’. Websites reporting the issue have provided links or embedded video allowing us all to compare the two songs and make an assessment over whether the two songs are the same, and opinion has been mixed. Social media has allowed us the freedom to make an evaluation and share it with the world.
However, it does raise the question as to whether this then should lead to legal action against Little Mix over the issue, and this is where the law has to separate itself out from popular opinion on the internet.
One thing that both the Pharrell Williams and Led Zeppelin litigation focussed upon was the difference between similarity of style and actual similarity of the songs concerned, with defendants in both cases putting forward the argument that they were merely writing songs with the same style as the earlier song. Pharrell Williams failed in this argument, whilst Led Zeppelin were successful – but where should the line be drawn?
Copyright law in the UK is clear that infringement by copying involves “reproducing the work in any material form”. It makes no reference to style or genre, and this is important, because it is important where the line is drawn regarding the difference between copying the ‘substance’ of a work, and copying the ‘style’. The latter is not an infringement, as copyright is interested in the actual expression of the work, and not the style or genre of that work. It would result in a much broader monopoly for the artist if it were.
We may all make an assessment over whether we feel that Little Mix’s song “sounds like” G.R.L.’s, but ultimately it will only be an issue for copyright law if it can be shown to have infringed G.R.L.’s rights. Some caution should be exercised here, otherwise being too ready to jump to the conclusion that one song has copied another may have an adverse effect upon creativity of recording artists.
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