[co-author: Ryan Merker]

English pop musician Ed Sheeran has been sued for copyright infringement in the Central District of California over his recent hit song “Photograph,” which peaked at number ten on Billboard’s “The Hot 100” chart. The two songwriter-plaintiffs, Martin Harrington and Thomas Leonard, claim that “Photograph” is “strikingly similar” to their song “Amazing.”  Among other forms of relief, Harrington and Leonard seek more than $20 million in damages.

Harrington and Leonard’s argument focuses primarily on a comparison of the chorus sections of the two songs.  They claim that the choruses share 39 notes that are identical in terms of “pitch, rhythmic duration, and placement in the measure” and share 4 “substantially related” notes, which together make up about 70 percent of the notes in chorus of “Photograph.”  The complaint also alleges that the placement and duration of the choruses are similar in each song – both songs have verses that are followed by bridge and chorus sections, with the first chorus being half as long as the second chorus.

The songwriting pair also claims the chord progression in each chorus is essentially identical.  The above chart, which is featured in the complaint, shows a comparison of the chords with “Amazing” on top and a transposed version of “Photograph” on the bottom.  The chord difference in measures 11 and 12, where “Amazing” uses G Minor 7 and “Photograph” uses B♭ Major, is described by Harrington and Leonard as “not meaningful” presumably because, for those who speak music theory, G Minor 7 is the relative minor of B♭ Major, which uses three of the four notes found in G Minor 7.

(For fellow music nerds, you may recognize the basic chord progression used in “Amazing” and “Photograph,” known as a “I – V – vi – IV” progression, from other songs, including “Beast of Burden” by the Rolling Stones, “Crying” by Aerosmith, “Glycerine” by Bush, and “With or Without You” by U2.)

Here is video comparing the relevant portions of the two songs:

https://www.youtube.com/watch?v=3ISkvjoz9iU

This suit continues a recent trend of high-profile copyright-infringement lawsuits against famous musicians, including one against Justin Bieber, who was recently sued for the song “Sorry,” which we reported on here. In that article, we discussed the plaintiff’s choice of venue in the Sixth Circuit, which has held that any amount of sampling is actionable from a copyright perspective.  It seems that Harrington and Leonard’s decision to seek venue in the Central District of California is likely also a deliberate choice.  The Ninth Circuit, in which the Central District of California resides, applies an “extrinsic” test on summary judgment when considering the issue of substantial similarity, usually the key issue in a copyright case.  Under the extrinsic test, a court will deny summary judgment “so long as a plaintiff can demonstrate, through expert testimony that . . . the similarity was ‘substantial’ and to ‘protected elements’ of the copyrighted work.”  Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1077 (9th Cir. 2006).  Under this test, two recent high-profile cases in the Central District of California survived summary judgment motions and proceeded to jury trials, namely, Williams v. Bridgeport Music – a case resulting in an award of over $7 million to Marvin Gaye’s estate against Pharrell Williams and Robin Thicke for the song “Blurred Lines” – and Skidmore v. Led Zeppelin – a case brought against Led Zeppelin for the song “Stairway to Heaven,” for which the jury trial recently started.  Undoubtedly, songwriters’ counsel, which also represented Gaye’s estate in Williams v. Bridgeport Music, is keenly aware of this standard.