Stealing the show

“Let’s get it on, sugar,” the robotic voice crooned. 

New York Times reporter Ben Sisario watched members of the jury grimace as the AI-generated rendition of Marvin Gaye’s ultimate slow jam crackled through a Manhattan courtroom this past May. Their job was to decide whether Ed Sheeran’s 2014 hit Thinking Out Loud infringed on Let’s Get It On’s copyright. 

“The most erotic song of all time, they’re hearing in this robot AI version,” Sisario said. “It was ridiculous.”  

Sisario’s challenge: explain the dense musical and legal theory behind this courtroom concert without losing any readers. 

Music copyright is a legal framework that allows artists to prevent their ideas and recordings from being used without permission. Although they foreground celebrities and popular songs, stories about high profile music copyright cases can easily alienate readers. When it comes to the technical aspects of the trials, Sisario says he has “noticed that people’s eyes kind of glaze over.”

The robotic performance of Let’s Get It On is a great example – it makes for a fun image, but its presence in the courtroom is hard to explain. 

When Gaye released the song in 1973, only sheet music could be protected by copyright, meaning the recording of Gaye actually  performing the song is not protected. Plaintiffs couldn’t sue Sheeran for copying the recording – they sued him for copying the musical notation on Let’s Get It On’s transfer copy, which is a skeletal page of music that Gaye and cowriter Ed Townsend registered for legal protection.  

This meant lawyers couldn’t play the actual recording in the courtroom. Instead, they resorted to making a computer program perform the transfer copy.

The cyber-singer didn’t impress the jury. Ed Sheeran walked away from the case without paying plaintiffs a cent. 

Journalists covering music copyright trials must smuggle tricky legal concepts into stories about celebrities. The challenge doesn’t stop there. If the judicial jargon doesn’t scare off readers, the music theory certainly will. Sisario points to the complicated musicology at the centre of a lawsuit against Led Zeppelin as evidence. 

“The Led Zeppelin case essentially had to do with a chord progression and a chromatic scale, and if you say those words to a Led Zeppelin fan, they don’t care,” Sisario said. “You might as well be talking about neutrons and protons.”  

Although they appeal to niche audiences, Sisario says music copyright stories are important resources for every reader. In the U.S., juries for infringement trials must be composed of musical laypeople, meaning almost anyone could end up deciding a copyright case. 

“The goal is to make [decisions] clear to a reader who doesn’t have expert knowledge of the subject, but would be considered a potential jury member who could be put in a situation of deciding that kind of thing,” Sisario said. 

If decisions on music copyright cases draw the invisible legal boundaries around musical creativity, journalism like Sisario’s gives readers, and potential jurors, a map. 

The Breakdown

Author John Seabrook wrote about the Sheeran trials for the New Yorker. Despite his interest in the case, he says he’s heard a little too much of Thinking Out Loud. 

Seabrook says describing the relevant musical concepts in words is a big part of the work. 

“You’re faced with a translation problem,” he said. “You know, you’re trying to take what makes sense in one medium and describe it in another medium, and that’s a pretty tricky thing to do.”  

Sisario ran into the same stumbling block while covering the Sheeran case. His two-sentence description of the trial’s central dispute, which was over a chord progression, had to be rigorously edited in order to be palatable for readers.

“The tricky part is that there are certain times when you can’t be that vague, and you have to more specifically say: the key dispute has to do with what note is being played here or there.”  

Musicologist witnesses pose another problem for journalists. Plaintiffs and defendants alike will hire experts to defend their cases, and their complicated testimonies can contradict each other. Seabrook had to sort relevant information out from their dense tangents at the Sheeran trial.

“These experts do get extremely pedantic about music theory,” he said. “And it’s often a battle of two pedants going at each other.”  

Sisario said the musicologist testimony was bewildering. 

“They’re showing a melody, and they’re showing all the tone values, and it’s like: you see, this one goes 3443214223, and that’s totally different from 342132222 — and like, it’s ridiculous,” he said. “I feel like even for people who are steeped in music theory, it’s like reducing things to this level of kind of atomic particles that doesn’t really make that much sense.”  

Deaf ears 

Journalists can sneak music copyright insights into their stories by piggybacking on the popularity of the stars involved in the trial. Seabrook says problems occur when the star shines so bright that details about the case get caught in the glare. 

According to Seabrook, the cases aren’t covered in the same way as other trials. Instead, he’s noticed when some publications cover a music copyright matter, “It’s covered as an entertainment story, and not as a legal story.”  

Seabrook says these flashy celebrity stories have been missing opportunities to tell readers what’s happening in the courtroom for decades. As a result, he says readers are easily overwhelmed.  

“It’s a little bit of an uphill battle, because the audience isn’t really ready for it. You know, they haven’t really been served well by journalists who do write about copyright issues.”  

Sisario echoed Seabrook’s frustration. Due to its complexity, descriptions of the trial’s actual content ended up being edited out of his story. 

“Even in the New York Times, where I try to be precise where I can be and I try to — even in the generalities — stick to the heart of the matter, most of what they are reading doesn’t explain the basics of what the case is about, and so all they hear is just this kind of gladiator match, and they take their sides.”  

As time goes on, these gladiator matches have become more and more common. 

Blurring the lines 

The demand for reporting on copyright cases has increased exponentially over the past few decades. George Washington University’s Music Copyright Infringement Resource tracks complaints from around the world dating back to 1844.

The database identifies only 10 major cases between 1970 and 1979. 

Between 2010 and 2019, 117 cases are listed. 

Most of these disputes take place in the United States. Although Canada allows for copyright trials, they are rare. Copyright lawsuits almost always target hit songs, and the U.S. produces far more hits than Canada does.

A large spike in cases began in 2015 – the same year that another Marvin Gaye-related decision made headlines. Gaye’s estate successfully sued Robin Thicke and Pharrell Williams to the tune of US$5.3 million for borrowing from Got To Give It Up – Pt. 1 for their track Blurred Lines without permission. 

The decision was controversial. The similarities between the two songs were abstract, and difficult to explain, blurring the line between legal inspiration and illegal copying. More than 200 musicians signed a brief in support of Thicke’s attempt to overturn the ruling.  

Law professor Charles Cronin, who oversees the Infringement Resource, says the spike in cases might have been caused by lawyers looking to take advantage of the ambiguity surrounding copyright rules. 

“It’s probably safe to say that the Blurred Lines case did prompt a number of opportunist claims hoping to capitalize on the wake of that decision,” he said.  

Seabrook says the entertainment journalism approach to these cases sensationalizes the act of infringement. 

“You can infringe on somebody’s song without ever trying to, and in no way does it impinge your credibility as a writer [or] as a person,” he said.  

Changing tune 

Musician and music publisher Neville Quinlan recently received a nervous-sounding email. 

The sender was a musician – they were concerned that their song sounded too much like an existing track. Despite working with smaller artists who are unlikely to be targeted for big-budget lawsuits, Quinlan says copyright disputes have affected music-making everywhere. 

“My feeling, as someone who works in the industry, is that these things are becoming more and more frequent,” he said. “And I don’t necessarily think that it’s a good thing for the industry or for more importantly, for creativity.”  

For Quinlan, part of the issue is the ambiguity surrounding what is and isn’t permissible. “The rules really aren’t clear,” he said.  

Quinlan thinks journalism could help fill in the blanks. 

“The bulk of the journalists connected to the music business are really entertainment writers,” he said. “It would be great to have more journalists that really understand copyright.”  

Seabrook agrees. He says music journalists aren’t interested in the right things. 

“Most journalists want to be near the stage when the band is playing, and then hang out afterwards backstage with a rock star.”  

Even larger copyright issues are still on the horizon. Copyright rules surrounding music created by artificial intelligence are not yet clear. An AI-generated song that flawlessly replicates the voices and writing styles of popular artists Drake and The Weeknd began circulating in April. Making money from the practice isn’t illegal yet. 

Quinlan says concerns about human copyright infringement pale in comparison to the threats AI poses to the music industry.   

“I think that it’s going to seem cute in a couple of years,” he said.  

According to Seabrook, music journalists should be paying attention. 

“All these AI issues are going to come down the pipe in a year or two,” he said. “And that’s really determining the future of humanity in some ways. So it’s definitely valid ground for journalism.”  

About the author

Dylan Taylor

Dylan Taylor makes music, journalism and music journalism in Halifax, Nova Scotia.