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We are constantly reminded that there is “no accounting for taste”, indicating that in matters of aesthetic subjectivity, one can never really predict what an audience is going to enjoy consuming.

Musician playing on acoustic guitar on dark background

This becomes even more apparent than when perusing the fractured modern music landscape, where every musical genre, no matter how obscure, can find its disparate audience through countless genre-specific streaming channels and many on-demand listening services. The internet has certainly democratized access to music in many ways, allowing many artists to earn a living in a way that may have been unthinkable even a decade ago.

Nevertheless, there is no doubt that many artists and nearly all music companies still relish the profile and economic windfall generated by an honest-to-goodness and widely successful pop hit. However, it can certainly be said that once a hit becomes a hit everyone involved wants to be properly credited, both from a financial and an artistic perspective.

This presents the following question : In the world of popular music, which is fundamentally created through the dual processes of direct inspiration and occasional synchronicity, who should get the credit for melodies, lyrics and rhythms that may have been “inspired” (either intentionally or not) by the body of work that predated this latest hit song?

To this point, there have been a number of recent examples of US litigation surrounding popular songs where US juries have been highly sympathetic to songwriters claiming that modern hits repurpose parts of their older songs.

UK pop-troubadour Ed Sheeran is the latest in the long line of Top 40 artists who are dealing with allegations of copyright infringement. In fact, Sheeran himself is no stranger to conflicts over the songwriting credits to his inexplicably popular songs.

However and without any fanfare, Sheeran’s team recently awarded a number of songwriting credits to the songwriters responsible for TLC’s 1999 hit “No Scrubs”, a hugely popular a kiss-off to lack-lustre partners and ode to high standards.

Feel free to draw your own conclusions by listening to the Sheeran song “Shape of You” here and the original TLC hit here. From this view, it seems that a case may be made that there is similarity between the choruses and pre-choruses of these two songs, but it takes some very careful listening.

However, it is notable that at this time there is no indication that litigation was commenced in this matter, suggesting that at least one hit artist is somewhat reticent to take his chances defending his case in court and would quite simply rather come to an expeditious and amicable settlement in cases such as these.

It remains to be seen if this approach represents a trend for resolving these types of disputes or is simply an anomalous event. Stay tuned for more developments in this space!

For more information on copyright infringement in the music industry, read our blog “Who Owns the Blues?” or contact our Intellectual Property Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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