Ed
Sheeran’s “Photograph” is the type of song that will have his fans
singing along, that will bring other pop superstars like Keith Urban to
admit being amazed with its tune craft. Unfortunately, Sheeran’s big hit
from last summer will now reach a federal judge’s ears too because on
Wednesday, it was alleged in a new $20 million lawsuit that something
that otherwise brings good vibes constitutes “verbatim, note-for-note
copying.”
Song
theft lawsuits are increasingly common, but this one has plaintiffs who
have written chart-toppers for many prominent artists in the industry
including Kylie Minogue and Spice Girl Emma Bunton. The suing
songwriters, Martin Harrington and Thomas Leonard, along with their
publishing company HaloSongs, say Sheeran’s “Photograph” derives from
their 2009 work, “Amazing,” which was recorded and released as a single
by Matt Cardle, the winner of the 2010 season of the television
competition show The X Factor. Perhaps most notably, the plaintiffs are
represented by attorney Richard Busch, whose last big copyright lawsuit
was on behalf of the Marvin Gaye family over the hit, “Blurred Lines.”
That one resulted in a head-turning $5.3 million judgment.
“My
clients are professional songwriters,” says Busch. “Their work is their
life, and I am honored that they have trusted me with this very
important case.”
If the credits of the plaintiffs going to potential access nor the bona fides of their attorney (who also prevailed in a sampling case
on behalf of Madonna last week) don’t sufficiently impress, there’s
also the complaint itself adorned with comparisons of chord progressions
and musical notation of the two songs. Here’s a couple of examples:
The
lawsuit attempts to make the case that “Photograph,” which Sheeran said
in an interview “will be the one that will change [his]… career path”
and reached No. 1 on the Billboard US Adult Top 40 chart in May 2015, is
too similar to both the composition written by Harrington and Leonard
as well as the version recorded by Cardle (which ironically,
has a lyric about “the stairway to heaven always starts in hell”). In
particular, there’s the chorus, which according to the complaint shares
39 identical notes - about 70 percent - in pitch, rhythmic duration and
placement in the measure.
“The
songs’ similarities reach the very essence of the work,” states the
complaint. “The similarities go beyond substantial, which is itself
sufficient to establish copyright infringement, and are in fact
striking. The similarity of words, vocal style, vocal melody, melody,
and rhythm are clear indicators, among other things, that ‘Photograph’
copies 'Amazing.’”
Sheeran,
who was crowned the top musical act in the U.S. last summer by
Billboard, will now have to answer these charges along with “Photograph”
credited co-writer Johnny McDaid, Sony/ATV Songs, Warner Music and
others including the recently sold Polar Patrol Music Publishing, each
named as co-defendants. According to the complaint, the Sheeran song in
controversy "is the most valuable of all of the assets of Polar Patrol,
and increased the price of the sale. The profits of Defendants that
Plaintiffs are entitled to recover thus include the portion of Polar
Patrol’s sale price that may be attributable to the inclusion of the
infringing 'Photograph’ composition.“
Sheeran,
who was crowned the top musical act in the U.S. last summer by
Billboard, will now have to answer these charges along with “Photograph”
credited co-writer Johnny McDaid, Sony/ATV Songs, Warner Music and
others including the recently sold Polar Patrol Music Publishing, each
named as co-defendants. According to the complaint, the Sheeran song in
controversy "is the most valuable of all of the assets of Polar Patrol,
and increased the price of the sale. The profits of Defendants that
Plaintiffs are entitled to recover thus include the portion of Polar
Patrol’s sale price that may be attributable to the inclusion of the
infringing 'Photograph’ composition.“
The
profits of the defendants are estimated to exceed $20 million, and the
plaintiffs are also seeking statutory damages and either an injunction
or a running royalty. We’ve reached out to Sheeran’s representative and
will update with any comment. According to the complaint, they’ve
already been given notice of the allegations and continue to exploit
"Photograph,” including licensing the song for the recently released
major motion picture, Me Before You.
Before
the lawsuit was filed, others noticed similarities in the songs,
posting suspicions on Twitter and YouTube. The matter now goes to a
California federal court.
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