More clarity on “normal use” in EU design law
The Court of Justice of the European Union has offered some clarity on what may be deemed ‘normal use’.
While Ed Sheeran has been enjoyed phenomenal success in his career, he has not been having it all his own way.
The singer was sued for copyright infringement for $20m by two composers, Martin Harrington and Thomas Leonard, who claimed Sheeran’s 2014 song ‘Photograph’ was copied from a song of theirs, ‘Amazing’, which was released by Matt Cardle, the 2010 winner of the The X Factor. The composers’ lawsuit claimed that ‘Amazing’ had been copied “verbatim” with “note for note copying”, and that “[T]he chorus sections of ‘Amazing’ and the infringing ‘Photograph’ share 39 identical notes”, and possessed similarities which were “instantly recognisable to the ordinary observer”.
On 7 April 2017, court papers were filed that dismissed the case “with prejudice”, but the California Federal Court will retain the power to enforce the terms of any agreement. The lawsuit has been confirmed by the composers to have been settled, but the final settlement amount has not been made public.
The composers were represented by Richard Busch, the lawyer who successfully worked for Marvin Gaye’s family over the “Blurred Lines” copyright infringement case, which resulted in a $7.4m settlement from Robin Thicke and Pharrell Williams.
Sheeran is also currently facing a lawsuit over allegations that he copied significant aspects of Marvin Gaye’s classic song ‘Let’s Get It On’, for his 2014 hit, ‘Thinking Out Loud’, with elements of the melody, harmony and composition being described as “strikingly similar” to Gaye’s song. This lawsuit alleges that “[T]he melodic, harmonic, and rhythmic compositions of ‘Thinking’ are substantially and/or strikingly similar to the drum composition of ‘Let’s.’ ” Comparisons between the two songs have frequently been made on social media since the release of ‘Thinking Out Loud’, with one article on the Spin website declaring that “‘Blurred Lines’ Isn’t Even the Biggest Marvin Gaye Ripoff This Decade.” This lawsuit is still ongoing.
Copyright infringement can be found in the UK when someone uses ‘a substantial part’ of another’s work without permission, and that while ‘a substantial part’ has not been defined in copyright law, it has been interpreted by the courts to mean a qualitatively significant part of a work, even in cases where this does not constitute a large part of the work. It is therefore quite possible that even a small portion of the whole work will still be considered to represent a substantial part.
For advice on copyright law, please get in touch with one of our attorneys.