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Ed Sheeran vs. Copyright Law

By April 27, 2023May 5th, 2023law practice

There are many well-known problems with U.S. copyright law.

Just ask Ed Sheeran, who was sued for writing a popular song with a melody too similar to another popular song.

Fortunately, he was exonerated of the charge of copyright infringement.

Now, Ed Sheeran’s not the only one who knows about the problems with our copyright law. You know who else knows?

ChatGPT knows the problems

Let’s ask ChatGPT what it knows about problems with copyright law (and later we’ll return to focus on the specific problem Ed Sheeran faced)

When I asked ChatGPT for a report here’s what I got.

“There are several common complaints about U.S. copyright law, many of which revolve around the balance between protecting the rights of creators and the public’s access to knowledge and culture…”

The chatbot then listed these well-known problems”

  • Length of copyright terms
  • Fair use ambiguity
  • Digital Millennium Copyright Act (DMCA)
  • Overzealous enforcement
  • Orphan works
  • Limited exceptions for libraries and educational institutions

I asked the helpful chatbot for more detail on each of these items, and .

Examples of well-known problems

Below is verbatim what ChatGPT provided when I asked for more detail.

1. Length of copyright terms

Many people believe that copyright protection lasts too long.

One example is Disney and its famous character, Mickey Mouse. Mickey was created in 1928, and under the original copyright laws, he would have entered the public domain in the 1980s.

There is a valid argument that extending copyright terms limits creativity and access to cultural works. If copyright laws were shorter, more people could create new stories and art based on characters like Mickey Mouse, which could lead to more innovation and cultural growth.

2. Fair use ambiguity

Fair use ambiguity arises when it’s unclear whether a particular use of copyrighted material falls under the fair use doctrine. This lack of clarity can lead to disputes and even lawsuits.

Some well-known examples of fair use ambiguity include:

  • Google Books Library Project:

Google aimed to create a digital library by scanning millions of books from libraries and providing snippets of texts in search results. Authors and publishers sued Google, claiming copyright infringement.

The case ultimately ruled in Google’s favor, stating that the project was transformative and constituted fair use.

  • The “Dancing Baby” case:

In 2007, a mother uploaded a video of her toddler dancing to Prince’s song “Let’s Go Crazy” on YouTube. Universal Music issued a takedown notice, claiming copyright infringement. The mother filed a lawsuit, arguing that her use of the song was fair use.

The court ruled in her favor, emphasizing the importance of considering fair use before issuing takedown notices.

  • Shepard Fairey’s “Hope” poster:

During the 2008 U.S. presidential campaign, artist Shepard Fairey created the iconic “Hope” poster featuring Barack Obama. The Associated Press (AP) claimed Fairey infringed on their copyright, as the poster was based on an AP photograph.

The parties eventually settled out of court, but the case raised questions about the boundaries of fair use in artistic expression.

  • The “Hairy Potter” case:

In 2003, author J.K. Rowling and her publisher sued a small publisher for distributing an unauthorized guide to the Harry Potter series called “The Harry Potter Lexicon.”

The court ruled that the guide did not constitute fair use, as it copied too much of Rowling’s original work without adding sufficient original commentary or analysis.

3. The Digital Millennium Copyright Act

The DMCA’s anti-circumvention provisions have been criticized for being overly restrictive and hindering innovation, security research, and legitimate uses of copyrighted works.

Some well-known examples include:

  • 2600 Magazine and DeCSS case

In 2000, 2600 Magazine published DeCSS, a software tool that decrypted DVD content, enabling users to play DVDs on non-supported platforms. The movie industry argued that DeCSS violated the DMCA’s anti-circumvention provisions.

The court ruled in favor of the movie industry, which critics argue limited users’ ability to use legally purchased DVDs on their preferred platforms.

  • Security research

The DMCA’s anti-circumvention provisions can limit security researchers’ ability to investigate and disclose vulnerabilities in software and systems. For example, in 2005, Sony BMG released music CDs with copy protection software that exposed users’ computers to security risks.

Researchers who discovered the issue were initially hesitant to disclose their findings due to concerns about violating the DMCA.

  • Jailbreaking

The DMCA’s anti-circumvention provisions initially criminalized the act of jailbreaking or unlocking smartphones to run unauthorized software or switch carriers. This restriction limited consumers’ freedom to use their devices as they saw fit.

However, the U.S. Copyright Office granted an exemption in 2010, allowing jailbreaking for smartphones, with periodic reviews and updates.

  • Video game preservation and modification

The DMCA’s provisions can make it difficult for gamers and researchers to preserve, study, or modify older video games, particularly those that require online authentication from defunct servers.

While the U.S. Copyright Office has granted some exemptions for video game preservation, critics argue that the process is too slow and cumbersome.

  • Accessibility for people with disabilities

The DMCA’s provisions often hinder the development and distribution of tools that make copyrighted works more accessible to people with disabilities.

For example, creating software to convert e-books into formats compatible with screen readers for the visually impaired could be considered a violation of the DMCA.

4. Overzealous enforcement of copyright laws

Overzealous enforcement occurs when copyright holders aggressively pursue infringement claims, sometimes targeting people for minor or non-commercial infringements.

Some well-known examples include:

  • RIAA lawsuits against individuals

In the early 2000s, the Recording Industry Association of America (RIAA) filed lawsuits against thousands of individuals for sharing music files on peer-to-peer networks. Many of these defendants were minors and people who accidentally shared files.

The RIAA’s aggressive tactics were considered excessive and resulted in disproportionate penalties for minor infringements.

  • Viacom vs. YouTube

In 2007, media company Viacom sued YouTube for $1 billion, alleging massive copyright infringement due to user-uploaded content that included Viacom’s copyrighted material.

YouTube eventually won the case.

  • Copyright trolling

Some entities, known as copyright trolls, acquire the rights to copyrighted works and aggressively pursue legal claims against alleged infringers, often seeking quick settlements rather than going to trial.

A well-known example is Prenda Law, which was accused of targeting individuals for allegedly downloading copyrighted adult films, using intimidation and threats of public embarrassment to pressure defendants into settling.

  • Automated takedown notices

Copyright holders often use automated systems to issue takedown notices for alleged infringements. For example, in 2012, a live stream of a Mars rover landing on NASA’s official YouTube channel was taken down due to an automated copyright claim by a news agency.

The takedown happened even though the content was in the public domain.

  • Fan-made content

Copyright holders sometimes target fan-made content, such as fan art, fan fiction, or fan films, even when they pose little threat to the original work’s commercial value. For example, in 2015, Paramount and CBS sued the creators of the fan film “Star Trek: Axanar.”

The case settled with terms that imposed restrictions on fan productions.

Back to Ed Sheeran’s lawsuit

Musician Ed Sheeran was recently sued because his song has a melody that sounds a lot like Marvin Gaye’s .

Both songs have the same chord progression.

What’s that chord progression?

I could have figured the progression out myself because I play guitar well enough to be able to figure out how to play songs by listening for the chord progressions.

But instead, I decided to…

Ask ChatGPT what it is

“What chord progression is used in the song ‘Let’s Get It On’, by Marvin Gaye?

To which the musically savvy Chatbot responded…

“Let’s Get It On” by Marvin Gaye features a prominent chord progression that can be described as a I-IV-V-IV progression in the key of E flat major. The chords used in this progression are Ebmaj7 (I), Abmaj7 (IV), and Bb7 (V). This soulful progression lends a sensual and romantic feel to the song.

I then decided to ask ChatGPT this question.

“What other popular songs feature this progression?

And here’s what it wrote back…

The I-IV-V-IV chord progression is quite common in popular music across various genres. While it might not be the exact same chords as in “Let’s Get It On,” the progression’s structure is the same. Here are a few examples of popular songs featuring this progression:
  1. ‘” by Journey (E, B, C#m, A)
  2. ” by U2 (D, A, Bm, G)
  3. ” by Lynyrd Skynyrd (D, C, G)
  4. ” by The Black Eyed Peas (F, C, Dm, Bb)
  5. ” by Ben E. King (C, Am, F, G)
  6. ” by The Rolling Stones (B, E, F#, E
Keep in mind that the chords and keys might vary between these examples, but they all share the same I-IV-V-IV progression structure.

Thank you for your service

If ChatGPT can easily help gather information about problems with copyright law, and also helpfully analyze song structure and provide cross-referenced examples, then why wouldn’t we allow this tool to flourish?

Well, because some people have a narrow, self-serving economic incentive to thwart innovation that’s massively beneficial to the public at large.

And this is one reason I agree with Damien Riehl’s TED talk proposition that all melodies should be free.

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