When Does Inspiration Become Infringement?

So, the bosses at George Ezra’s label decided it was easier to pay off the lawyers for an alleged copyright infringement of Derek Ryan’s track “Flowers In Your Hair” in the body of Ezra’s “Shotgun” than go to court and prove the point – with musicologists fighting each writer’s corner.

Copyright infringement over tracks is not new. George Harrison paid £440,757 to the writers of The Chiffons’ “He’s So Fine” vs “My Sweet Lord”. Sam Smith agreed 12.5% of royalties with Tom Petty for “Stay with Me” vs “I Won’t Back Down”. And Ed Sheeran’s team are currently disputing an eye-watering £79million for alleged copyright infringement of Marvin Gaye. In most infringement cases I suspect it is the lawyers that make the most money, so a smart move from the team at Sony Music.

I am surprised that there are not more copyright infringement cases because something so fundamental is not well understood, by both artists and businessmen. Officially it is defined as ‘An original musical/artistic creation that is protected by Copyright Law protecting legal and moral rights as to how it is to be used and recorded.’ Copyright begins automatically once a piece of music is created, documented or recorded and every piece of music created in that way has a copyright.

Ezra insists he had never heard Ryan’s song before penning “Shotgun” and I suspect that is true. If we are listening 24/7 to music as a wallpaper backdrop we are undoubtedly absorbing intros, chords, and riffs on a continuous basis. Unless we are logging every piece of music, it floats in and out of our consciousness to be banked and inadvertently drawn on when we want to write our next masterpiece.

As advertisers, there is another side to this very expensive coin. We have to be aware when we want to use music in our marketing that all of the above is irrelevant. Our diligence in clearing rights on the synchronisation side is a critical part of the process. Synch companies worth their sorts will be aware of any disputes whether current or historic. They are trained to ask questions on behalf of their clients that will explore any vulnerabilities in a chain of rights. They know what it means to be on the wrong side of any claim and should be insured if the proverbial s**t hits the fan. Nothing brings a track into the spotlight more than an on-air commercial with a piece of music that has questions about its provenance attached!

For me, the more dangerous practice is when a music production team is instructed by their client to write something ‘new’ that is inspired by the reference track supplied. Too often the agency will push the composer to get ‘closer’ than is comfortable. If the composer pushes back too much they run the risk of losing the gig, because in a highly competitive market there is always someone who will take that risk for the fee.

Copyright infringement is expensive whether you win or you lose. For the advertiser, in addition to the legal fees and penalty fees paid to the original rights owners, it also means the cost of pulling the commercial off-air and losing important airtime whilst the creative teams rethink. The irony is that the cost of all of the above fees will be far more than if the original reference track had been licensed and rearranged!