What’s in a Song? How Copyright Law is Rocking the Music Industry

by Eugene Ee

The turn of the year witnessed a number of developments in the area of copyright law, both locally and internationally, particularly in the United States (‘U.S.’), being the world’s largest recorded music market.[1] This article will provide an overview of two high-profile suits that were filed in the U.S. in view of the dearth of reported decision in Malaysia in this area, and also a brief update on the recently-launched Music Rights Malaysia.

Songs on Trial

On 10 January 2018, co-writers of the Australian hit-song “When I Found You” (“Plaintiffs’ song”), filed a suit claiming that the song “The Rest of Our Life” (“alleged infringing song”), co-written by Ed Sheeran and performed by Tim McGraw and Faith Hill, had blatantly copied the Plaintiffs’ song. Sony Music Entertainment (“Sony”), the exclusive licensee of the alleged infringing song, was also named as a co-defendant in the suit.

Typically in such cases, the question of whether there are “sufficient similarities” is determined based on a comparison of the musical transcription of the competing songs. As such, the expert opinion of musicologists would often be required. In this case, it is alleged by the Plaintiffs that both songs are substantially similar in many aspects, amongst others, in their chord progression, vocal and instrumental accompaniment, and themes.

Interestingly, on the point of causal connection or proof of “copying”, which is often considered as the biggest issue of contention in copyright infringement claims of such nature, the Plaintiffs alleged that Sony had access to the Plaintiffs’ song through its marketing manager, who was in a relationship with the third co-writer and also the performer of the Plaintiffs’ song.

It was also pleaded in the alternative that Ed Sheeran had access to the Plaintiffs’ song when he toured Australia extensively in 2016, which was when the Plaintiffs’ song received mass airplay on Australian radio stations. It remains to be seen whether the U.S. District Court would consider such facts to be sufficient to prove the element of causal connection or proof of “copying”.

This case would be the highest profile copyright infringement suit of such nature since the disputes involving Robin Thicke & Pharrell Williams’ “Blurred Lines” (where the defendants were found to be liable for copyright infringement) and Taylor Swift’s “Shake It Off”.

Music-Streaming Giant Sued

Separately, Wixen Music Publishing Inc. (“Wixen”) is suing Spotify for US$1.6 billion, alleging that Spotify had taken “a short cut” by only obtaining sound recording copyrights and not the musical compositions copyrights of Wixen’s clients. The suit is currently pending in the U.S. court.

Recorded songs consist of multiple works that are separately eligible for copyright protection. This is similarly recognised under the Malaysian Copyright Act 1987 where sound recordings and the musical works (including musical accompaniment) are recognised as separate works.

Sound recordings generate revenue for the owner of the sound recording (often the artist’s record label) whereas musical works are the source of income for composers (usually songwriters and their music publishers).

To resolve this issue, U.S. legislators are working on enacting the Music Modernisation Act, which aims to establish a central database that will help identify the songwriters and publishers who are in control of each composition.

Music Rights Malaysia Berhad (“MRM”)

Music Rights Malaysia Berhad or MRM was recently launched on 5 February 2018 as the sole licensing body for collective music royalty collection activities in Malaysia, which were previously undertaken by 4 separate music licensing bodies namely Music Authors’ Copyright Protection Berhad (“MACP”); Public Performance Malaysia Sdn Bhd (“PPM”); Recording Performers Malaysia Berhad (“RPM”) and Performers Rights & Interest Society of Malaysia Berhad (“PRISM”).

The establishment of MRM as the one stop centre for the issuance of copyright music licences is a much welcomed move as it simplifies the collection of music royalty and saves time for commercial music users who wish to apply for the requisite licences.

Licences that are more commonly issued by MRM are the Single Event Public Performance Licences (for one-off and continuing events) and the Annual Public Performance Licences (for music use at physical commercial premises/outlets). Commercial music users who wish to find out whether they are or would be required apply for such licences may contact us or MRM directly.

 

[1] International Federation of the Phonographic Industry (‘IFPI’) 2017 Report.