Whose line is it anyway?
Recent copyright infringement allegations rocking the music industry and the applicable law.
Considering the rate at which songs are produced (approximately 22-million songs a year), it’s no surprise the industry has seen some of its biggest stars face allegations for copyright infringement emanating from popular tunes (Savage, 2022). Recent cases involving international artists Ed Sheeran and Dua Lipa have shed some light on the approach of overseas courts when posed with copyright infringement allegations of a similar or same nature.
Sheeran’s famous hit song ‘Shape of you’ was the subject of a court battle in which the applicant sought to prove that the song’s hook (“oh I”) was markedly similar and a reproduction of the hook in a song containing “oh why”, originally written by Sam Chokri.
The UK court heard recordings and live renditions of various songs being sung by Ed Sheeran, in which he sought to illustrate the commonality of melodies in multiple songs across separate genres and generations, all bearing similarities, but none necessarily being based on the other. In reaching a decision, the court was compelled to adopt a qualitative methodology in order to compare the relevant songs and/or parts thereof, and subsequently to make a finding on the degree of similarity and connection or causal link between the purported original and that which was being alleged as an infringement on such work (Cronje, 2022).
The legislation in South Africa regarding copyright of musical works is patently similar to that which has been applied in the United Kingdom. Generally speaking, a musical work is automatically copyrighted where such work is an original. In terms of the Copyright Act 98 of 1978, copyright vests in the owner of a musical work the exclusive right to allow and/or disallow the reproduction, distribution, performance and public display of his/her work. The owner of said copyright work is thus entitled to lifetime protection of their literary, musical work or any substantial part thereof, in terms of the Act (section 3(2)(a)).
Copyright is described as a negative right, in that the holder is entitled to prohibit the performance of any conduct which seeks to infringe such right. This inherent enforceability forms the foundation upon which musical works, for example, can be subject to protection in the courts, in terms of copyright legislation (Feldman v EMI Music SA, 2007).
The interpretation of a ‘substantial part’ confirms a qualitative test, rather than quantitative, when assessing whether a specific and material characteristic/element of a musical work has been knowingly reproduced. This indicates that there need only be a reproduction of a part of the work which may be considered essential to the musical and/or literary work, in order to constitute a copyright infringement (Cronje, 2022).
Having regard to the above, the approach by the UK court in the Ed Sheeran matter becomes clearer and illustrates consistencies with South African copyright law. The court recently dismissed the copyright claim brought against Sheeran, stating that Sam Chokri’s work had “neither deliberately, nor subconsciously” been copied (Savage, 2022). The judge went on to acknowledge similarities between the songs, but also cited compelling differences, which indicated that the origin of the hook in Sheeran’s ‘Shape of you’ was indeed not founded on Chokri’s work (Cronje, 2022).
The current dearth in South African case law applicable to musical copyrighting means that we may resort to speculation when seeking to analyse our courts’ approach to copyright infringement in the music industry. However, the recent Copyright Amendment Bill may go some way in establishing an updated and effective framework for copyright law in general, and that which relates to the music industry specifically.
Bibliography:
Cronje J https://www.adams.africa/copyright/pop-stars-to-face-the-music-over-alleged-copyright-infringement/ (March 2022)
Cronje J https://www.golegal.co.za/copyright-counterclaim-music/ (April 2022)
Ismail F and Collett C https://gadget.co.za/sheeran-song-judgement-what-it-means-for-sa-artists/ (April 2022)
Wilken S https://www.golegal.co.za/plagiarism-copyright-infringement/ (Feb 2022)
Savage M https://www.bbc.com/news/entertainment-arts-61006984 (April 2022)