By Alex Casey.
Alex Casey is an LL.B. graduate and currently pursuing a LL.M. in International Commercial Law from the University of Limerick. In this article, he discusses various longstanding principles of ‘originality’ in music copyright law with reference to the recent Ed Sheeran case which captured extensive attention among the media and wider society.
The wisdom that perhaps there are no truly novel creations immune from pre-existing influences is particularly intriguing in the context of the ‘originality’ requirement within music copyright law.[1] When it comes to originality, often ‘the difficulty is not deciding but rather explaining it’.[2] In this vein, this discussion endeavours to contextualise the recent Ed Sheeran litigation within the broader copyright framework and the well-established legal principles applicable thereto.
Firstly, a brief exposition of the well-documented Ed Sheeran dispute and related case-law will be provided. Secondly, the core features of the originality concept in music copyright will be introduced. The remainder of the discussion will then assess key statements and comments emerging from the coverage of the recent trial by reference to general principles of international copyright law. It will conclude that many of the legal issues involved are not only recurring in the music industry, but also in creative works generally.
Ed Sheeran – Copyright (feat. Katy Perry, Taylor Swift, Led Zeppelin and Robin Thicke)
In the recent Ed Sheeran US, federal court dispute, the Plaintiffs brought proceedings claiming that Sheeran’s song ‘Thinking Out Loud’ copied from the earlier Marvin Gaye hit, ‘Let’s Get it On’.[3] The plaintiffs were the heirs of Ed Townsend, the co-writer of Gaye’s song, and argued that the chord progression, rhythm and arrangement of the two songs were identical and likely copied.[4] Contrastingly, the Defendants maintained that the disputed aspects of Sheeran’s song were in the public domain and freely used in many songs.[5] Ultimately, the Manhattan jury was satisfied that Sheeran’s song had been created independently and was not the result of imitation.[6]
Interestingly, this was not the first occasion on which songs by Ed Sheeran or Marvin Gaye had been subject to recent copyright litigation. Marvin Gaye’s heirs received $5.3 million in compensation for copyright infringement by the Robin Thicke and Pharrell Williams hit, ‘Blurred Lines’.[7] Equally, Sheeran has successfully resisted several similar proceedings already, seeing off earlier lawsuits concerning the songs ‘Shape of You’ and ‘Photograph’.[8] Other high-profile recipients of unwanted copyright litigation in recent times include Katy Perry, Taylor Swift and Led Zeppelin, each of which, like Sheeran, successfully established ‘originality’ in their works.[9]
Understanding ‘Originality’
While precise treatment of ‘originality’ across jurisdictions has differed,[10] several core aspects of the concept remain constant. The object of copyright has been described as ‘to prevent anyone publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world’.[11] Thus, originality fundamentally dictates that the ‘work should not be copied’ and ‘should originate from the author’.[12] Unfortunately, originality has proven an ambiguous standard, with the dividing line between original and unoriginal works apparently an uncertain and shifting one.[13]
Equally, although slight differences exist in international legal systems, it is also beneficial to understand what ‘originality’ generally does not consider.
Firstly, ‘[o]riginality does not impose the objective standards of novelty, usefulness, inventiveness, merit, quality or value’.[14] Copyrightable works need not be ‘an expression of original or inventive thought’[15] because copyright is ‘not concerned with the originality of ideas, but with the expression of thought’.[16] Furthermore, copyright does not require absolute originality, but rather a more realistic standard of relative originality.[17] While these statements have been taken from seminal UK decisions, these foundational principles of copyright law can be taken as traversing global legal systems.
More generally, originality has been described as the overarching sine qua non, essence, touchstone or cornerstone of copyright law.[18] Accordingly, some commentators regard this as ‘the only criterion that must be met before protection is accorded’.[19] However, originality is in fact only one of the necessary criteria for copyright protections, alongside considerations such as categories of copyrightable subject matter, tangibility, fixation and nationality.[20] Nonetheless, originality permeates many copyright-related issues, acting ‘as the threshold for legal protection, as a marker of authorship and as the key concept in the assessment of infringement’.[21] Thus, originality ‘has come to serve as a touchstone for the resolution of all fundamental questions concerning the scope and attribution of rights under copyright law’.[22] In each instance, the role of originality is essentially to act as a ‘filter’ to ensure unmeritorious works that come within one of the categories of copyrightable subject matter are not protected.[23] Originality acts as a de minimis threshold which conventional works will easily satisfy, yet scrutinises the less blatant or borderline cases.[24] While the term ‘originality’ is not employed under the Berne Convention[25] (the leading international copyright law instrument), reference is made to the ‘author’s own intellectual creation’, which has been clarified to be synonymous with originality. [26]
Despite the central importance of originality for determining copyright subsistence and infringement, there is regrettably no universally accepted definition of originality.[27]
While there is general agreement on some aspects, there remains a ‘striking and uncomfortable’ degree of ambiguity regarding the level of creativity required for copyright protection.[28] The preceding sections have articulated originality as merely requiring works to be created by the author themselves and without copying others. This constitutes the baseline standard for originality, although the majority of jurisdictions have added further requirements to their tests for originality.[29] Without requiring that something extra, originality is ‘eviscerated of its core meaning’ and ‘fails to reflect the ordinary sense of the word’.[30] Thus, most jurisdictions have deemed it essential to include ‘[s]ome creavitity standard… that a work must clear to enter the realm of copyright’.[31]
Helpfully, there is now a harmonised originality standard in the EU, which extends copyright protection only to the ‘author’s own intellectual creation’. This requires works to reflect the author’s personality, meaning an ability to express their creativity through free choices.[32] Put simply, a ‘stamp of individuality’[33] or ‘personal touch’[34] is required, as opposed to mere ‘mechanical effort’. [35] Outside of the EU, standards continue to differ slightly. The US standard is higher than mere ‘sweat of the brow’ and requires ‘some minimal degree of creativity’ or ‘creative spark’.[36] Thus, the US threshold appears to fall slightly short of the EU standard.[37] In any event, commentators have observed that global attitudes are apparently converging towards protecting factual or functional works while also requiring some degree of creativity.[38] Suffice it to say, there is a similarly low threshold to be met for ‘originality’ across most jurisdictions, meaning there are plenty of ‘new’ works created regularly.
Is ‘Originality’ Unrealistic in Music?
In a recent interview, Sheeran explained that ‘[t]here’s four chords that get used in pop songs, and… eight notes’.[39] Given that ‘there’s 60,000 songs released every single day’, Sheeran suggests that creative coincidences are inevitable.[40] Admittedly, copyright law has long acknowledged the finite amount of ways to express ideas.[41] In the music context, it has been opined ‘[t]here’s really only one song… everything else is a variation’.[42] Such concerns, however, are not confined to the music industry. For painters, there are perhaps only so many ways one can depict the same location, landmark or historical event.[43] As for writers, classic storylines such as ‘boy meets girl, boy loses girl, boy gets girl’ permeate countless narratives.[44] In summary, perhaps creative works are not always as novel as one might think.
Disproving Copyright Infringement
In spite of the reality of inevitable overlap between creators, copyright is nonetheless infringed when protected works are reproduced in any material form without authorisation.[45] In assessing whether such infringement has occurred, generally a bipartite analysis is employed which requires (i) a sufficient degree of objective similarity between the works, and, (ii) some causal connection.[46] While objective similarity is relatively easy to assess, the subjective causal requirement attaches importance to the author’s intent.[47] Accordingly, individuals may ‘by some magic’ create works identical to existing ones and such double creation is permissible provided the replica was created independently.[48] Some judges have shown more scepticism, deeming it ‘impossible… to justify that the same language results from chance’.[49] In practice, objective similarities alongside proof of access to the existing work often raise a rebuttable presumption of copying.[50]
In relation to the recent lawsuit, Sheeran asserted ‘[y]ou can only get caught if you’ve done something wrong, and I have not done something wrong’.[51] Sheeran also claimed to have only passing familiarity with Gaye’s song, admitting his song’s true inspiration came from Van Morrison’s songs such as ‘Tupelo Honey’, ‘Crazy Love’, Have I Told You Lately’ and ‘Why Must I Always Explain?’.[52] Having been instructed by Judge Stanton that ‘independent creation is a complete defense, no matter how similar that song is’, the jury concluded that no copyright infringement had occurred.[53]
One particularly controversial and recurring allegation in the music industry has been the possibility of subconscious copying.[54] Despite noting that the only means of avoiding subconscious influence is utter isolation from society, the courts have generally treated conscious and subconscious copying identically.[55] A key consideration in this respect is that originality considers not only objective factors but also subjective perspectives.[56]
Tangentially, while there is no copyright in the use of a particular style or technique,[57] non-literal copying may constitute copyright infringement.[58] This recognises that the originality of a work is often bestowed by some intangible essence rather than its physical expression via manuscript or painting.[59] Nevertheless, it is possible for replication of ‘subterranean elements of a work, such as plot, composition or arrangement’ to infringe copyright, provided they constitute a ‘substantial part’ of the work.[60] Regarding ‘substantial part’, the determinative consideration is the significance of the copied part, particularly its originality.[61]
Public Domain Concerns
Fundamentally, copyright does not protect the particular resources, facts or ideas underlying an author’s expression.[62] Enforcing originality in this way would be to treat ‘copyright as a game of chess in which the public can be checkmated’.[63] If this were not so, then the first creator to write a book, song or movie depicting, for instance, a particular historical event, would acquire a monopoly right excluding any other creators from depicting that event.
It is important to remember that the raison d’etre of intellectual property rights is to encourage innovation and creativity for the ultimate benefit of society.[64] When public ideas are privatised too hastily, the economic consequences are borne by all. Accordingly, copyright has always bore an important responsibility in demarcating the boundaries between such private ownership and the public domain.[65]
According to Sheeran’s legal representative, the artist merely used ‘basic musical building blocks that songwriters now and forever must be free to use’.[66] Furthermore, she averred the relevant chords are ‘an essential element of every songwriter’s toolkit’[67] and akin to ‘letters of the alphabet of music’.[68] It was also noted that a finding of infringement would mean ‘creativity would be stifled for fear of being sued’.[69]
Contrastingly, the legal representative of the Plaintiffs argued not that they owned the basic musical elements of Gaye’s song but rather ‘the way in which these common elements were uniquely combined’.[70] Accordingly, while the individual elements were not subject to copyright protection, arguably the ‘selection and arrangement’ should be.[71]
Such a legal argument accords with the principle that original copyrightable works can be produced from entirely pre-existing materials. For instance, compilations, anthologies or textbooks are deemed to contain sufficient independent judgement and selection in their production.[72] Interestingly, originality can even be found in works which are blatant reproductions of earlier iterations. For example, each preliminary draft of a final work is deemed independently original, provided it meets the minimum skill or labour requirement.[73] Equally, new editions of a text are deemed original, provided they contain substantial alterations.[74] In each of these examples, it is the selection and arrangement which warrants protection rather than the building blocks themselves.
Another related conundrum which originality has faced is that precise copying is potentially quite skilful and meritorious.[75] A small minority of commentators have suggested ‘[r]eproductions requiring great talent and technical skill’ should qualify as original works.[76] The general rule is that no amount of skill or effort in creating a high-quality replication of another’s work can, without adding something , confer originality.[77] Ironically, this means that a good copyist or forger will not receive copyright protection, whereas low-quality replicas are deemed original.[78] In other words, a song which masters the elements of another work would be a violation, while a cheap knock off, unable to replicate the value of the original, would be a separate work. Some authorities acknowledge that a highly skilled reproducer is no longer ‘a mere copyist… performing an easy mechanical function’ and thus deserves protection.’[79]
These problems have proven most contentious regarding photography.[80] Seemingly, the photographer must aim to imbue the work with their own personal flair, rather than producing a faithful copy of the original.[81] It has been recognised that photography often involves many creative choices, such as the angle, timing, focus, positioning and other arrangements.[82] Seemingly, what is required is merely ‘some element of material alteration or embellishment… to make the totality of the work an original work’.[83]
Conclusion
In summation, despite the importance of originality in music copyright law, perhaps there are fewer truly novel creations than one might expect. This reality is reflected in the restrictive manner in which ‘originality’ is legally defined. This, coupled with the law’s treatment of copying earlier iterations, means perhaps a fundamental reimagination would be needed to salvage the ordinary meaning of ‘originality’. It is submitted that the Ed Sheeran case escorted many recurring issues in the music industry firmly into the public eye. However, this also provided an opportunity to contextualise the many snappy headlines or attention-grabbing quotes within their proper legal context.
By current legal standards, it appears there are countless new and original works conceived daily. The law reflects the impracticability of absolute originality. The creative world must be understood as collaborative,[84] cyclical[85] and patterned.[86] While creators may not recognise it, ‘their creations are to a large extent the fruit of a tree that was planted at least two thousand years ago’.[87] Accordingly, a certain longstanding sentiment towards novelty remains pertinent;
‘What has been will be again,
what has been done will be done again;
there is nothing new under the sun.’[88]
And perhaps, no song that hasn’t yet been sung.
[1] John Geiger and Howard Suber, Creativity and Copyright: Legal Essentials for Screenwriters and Creative Artists (Oakland: University of California Press 2019) 15.
[2] Ramón Casas Vallés, ‘The Requirement of Originality’ in Estelle Derclaye (ed), Research Handbook on the Future of EU Copyright (Cheltenham: Edward Elgar Publishing 2009) 102.
[3] Structured Asset Sales, LLC v Edward Christopher Sheeran et al (2023)18 Civ. 5839 (LLS) (‘SAS v Sheeran’). Benjamin Lee, ‘Ed Sheeran cleared of infringing copyright in Marvin Gaye lawsuit’ (The Guardian, 4 May 2023). Josh Russell, ‘Estate of “Let’s Get It On” writer loses Ed Sheeran copyright case’ (Courthouse News Service, 4 May 2023)
<https://www.courthousenews.com/estate-of-lets-get-it-on-writer-loses-ed-sheeran-copyright-case/> [accessed 15 July 2023].
[4] SAS v Sheeran (n 3) 9. Andrew Dalton and Larry Neumeister, ‘Did Ed Sheeran hit pilfer Marvin Gaye classic? Trial to Tell’ (apnews.com, 25 April 2023)
<https://apnews.com/article/ed-sheeran-copyright-lawsuit-marvin-gaye-townsend-3f4f9f00ffcaa8dd8d9c6f51872e7285> [accessed 15 July 2023].
[5] SAS v Sheeran (n 3) 10. Aaron Katersky and Meredith Deliso, ‘Ed Sheeran wins copyright infringement lawsuit involving “Thinking Out Loud”’ (abcnews.go.com, 4 May 2023)
<https://abcnews.go.com/Entertainment/jury-reaches-verdict-ed-sheeran-copyright-infringement-case/story?id=99022695> [accessed 15 July 2023].
[6] Nick Eziefula, ‘Ed Sheeran wins Thinking Out Loud copyright case’ (simkins.com, 5 May 2023)
<https://www.simkins.com/news/ed-sheeran-wins-thinking-out-loud-copyright-case> [accessed 15 July 2023]. Blake Brittain and Brendan Pierson, ‘Ed Sheeran did not violate “Let’s Get It On” copyright, US jury finds’ (reuters.com, 4 May 2023)
<https://www.reuters.com/legal/us-jury-sides-with-ed-sheeran-lets-get-it-on-copyright-trial-2023-05-04/> [accessed 15 July 2023].
[7] Williams v Gaye (2018) 9th Cir. No.15-56880. Mark Savage, ‘Blurred Lines: Robin Thicke and Pharrell Williams to pay $5m in final verdict’ (bbc.com, 13 December 2018).
<https://www.bbc.com/news/entertainment-arts-46550714> [accessed 15 July 2023].
[8] Sheeran v Chokri [2022] EWHC 827 (Ch). Victoria Bekiempis, ‘Ed Sheeran’s Copyright Trial, Explained’ (vulture.com, 17 May 2023)
<https://www.vulture.com/article/ed-sheeran-copyright-lawsuit-over-marvin-gaye-song-explained.html> [accessed 15 July 2023]. Mark Savage, ‘Ed Sheeran wins Shape of You copyright case and hits out at ‘baseless’ claims’ (bbc.com, 6 April 2022)
<https://www.bbc.com/news/entertainment-arts-61006984> [accessed 15 July 2023].
[9]Gray v Hudson (2022) 9th Cir. No. 20-55401; Sean Hall v Taylor Swift (2019) 9th Cir. No.18-55426; Skidmore v Led Zeppelin (2020) 9th Cir. No.16-56057. See also Ben Sisario, ‘The “Blurred Lines” Case Scared Songwriters. But Its Time May Be Up.’ (New York Times, 24 March 2020); Charles Macedo, David Goldberg, Olivia Harris and Thomas Hart, ‘Round-Up of US Copyright Developments 2022’ (2023) 18(4) Journal of Intellectual Property Law & Practice 294, 295-296. Ben Sisario, ‘Lawsuit Over Lyrics in Taylor Swift’s “Shake It Off” is Dismissed (New York Times, 12 December 2022).
[10] Annette Kur, Thomas Dreier and Stefan Luginbuehl, European Intellectual Property: Text, Cases and Materials (2nd edn, Cheltenham: Edward Elgar Publishing 2019) 342-344.
[11] Hollinrake v Truswell (1894) 3 Ch D 420 (Davey LJ).
[12] University of London Press Ltd v University Tutorial Press [1916] 2 Ch 601 (Peterson J).
[13] MacMillan v Cooper (1923) 93 LJPC 113 (Lord Atkinson).
[14] Sawkins v Hyperion [2005] WLR 3281, 3288 (Mummery LJ).
[15] University of London Press (n 12). Deming Liu, ‘Of Originality: Originality in English Copyright Law – Past and Present’ (2014) 36(6) European Intellectual Property Review 376.
[16] University of London Press (n 12). Elanco Products Ltd v Mandops Ltd [1979] FSR 46.
[17] Casas Vallés (n 2) 116. Alan Durham, ‘Speaking of the World: Fact, Opinion and the Originality Standard of Copyright’ (2001) 33 Arizona State Law Journal 791.
[18] Casas Vallés (n 2) 102.
[19] Sam Ricketson, ‘The Concept of Originality in Anglo-Australian Copyright Law’ (1991) 9(2) Journal of the Copyright Society of Australia 1.
[20] Guy Tritton, Richard Davis, Ashley Roughton and Thomas St. Quintin, Intellectual Property in Europe (4th edn, London: Sweet & Maxwell 2014) 777-780.
[21] Jonathan Griffiths, ‘Dematerialization, Pragmatism and the European Copyright Revolution’ (2013) 33(4) Oxford Journal of Legal Studies 767.
[22] Griffiths (n 21) 767.
[23] Anthony Reese, ‘What Should Copyright Protect?’ in Kimberlee Weatherall and Rebecca Giblin (eds) What If We Could Reimagine Copyright? (Australian National University Press 2017) 111-120.
[24] Tanya Aplin and Jennifer Davis, Intellectual Property Law (4th edn, New York: Oxford University Press 2022) 106.
[25] David Bainbridge, Intellectual Property (10th edn, London: Pearson 2018) 68.
[26] Sam Ricketson and Jane Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond (Oxford: Oxford University Press 2006) [8.03]. Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009].
[27] Eugene Lim, ‘Reconstituted Expression, Edited Works and Originality in Copyright Law’ (2023) 45(2) European Intellectual Property Review 72, 73-74.
[28] Casas Vallés (n 2) 102.
[29] Hector MacQueen, Charlotte Waelde and Graeme Laurie, Contemporary Intellectual Property: Law and Policy (New York: Oxford University Press 2008) 50.
[30] Daniel Gervais, ‘Feist Goes Global’ (2002) 49 Journal of the Copyright Society of the USA 959.
[31] Reese (n 31) 137).
[32] Case C-145/10 Painer v. Standard Verlags GmbH [2011] ECDR 13.
[33] Newspaper Licensing Agency Ltd v Meltwater Holding BV [2010] EWHC 3099 (Ch) [83].
[34] Case C-393/09 Bezpečnostní softwarová asociace – Svaz softwarové ochrany (BSA) v Ministry of Culture of the Czech Republic [2010].
[35] Case C-604/10 Football Dataco Ltd v Yahoo! UK Ltd [2012].
[36] Feist Publications Inc v Rural Tel. Serv. Co. (1991) 499 US 340.
[37] Steel (n 46).
[38] Anastasia Simonova, ‘US Copyright Office Review Board Applies Feist Originality Standard to Fabric Pattern’ (2019) 14(3) Journal of Intellectual Property Law & Practice 180.
[39] Ramon Antonio Vargas, ‘Ed Sheeran on copyright infringement lawsuit: “Comes with the territory”.’ (The Guardian, 7 May 2023).
[40] ibid.
[41] Kenrick v Lawrence (1890) 25 QBD 99.
[42] Jessica Pallington West, What Would Keith Richards Do? Daily Affirmations with a Rock and Roll Survivor (London: Bloomsbury Publishing 2009) 63.
[43] Hector MacQueen, Charlotte Waelde and Graeme Laurie, Contemporary Intellectual Property: Law and Policy (New York: Oxford University Press 2008) 56.
[44] Darren Hudson Hick, Making Sense of the Copyrightability of Plots: A Case Study in the Ontology of Art (2009) 67(4) The Journal of Aesthetics and Art Criticism 399, 401.
[45] Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch); Falcon v Famous Players Film Co. [1926] KB 474.
[46] Francis Day & Hunter v Bron [1963] Ch. 587; Abraham Moon & Sons Ltd v Thornber [2013] FSR 17.
[47] Justine Pila, ‘An intentional View of the Copyright Work’ (2008) 71(4) The Modern Law Review 535.
[48] Sheldon v Metro-Goldwyn Pictures Corp (1940) 309 US 390.
[49] Casas Vallés (n 2) 126. Billhofer Maschinenfabrik GmbH v T H Dixon & Co Ltd [1990] FSR 105.
[50] Francis Day (n 38) (Diplock LJ).
[51] Jules Lefevre, ‘Ed Sheeran Talks “Thinking Out Loud” Lawsuit on US TV: I’ve Not Done Something Wrong’ (musicfeeds.com.au, 9 May 2023)
<https://musicfeeds.com.au/news/ed-sheeran-lawsuit-interview/> [accessed 15 July 2023].
[52] Russell (n 3). Brendan Pierson, ‘Ed Sheeran calls copycat claims ‘insulting’ in “Thinking Out Loud” trial (reuters.com, 3 May 2023)
<https://www.reuters.com/legal/ed-sheeran-calls-copycat-claims-insulting-thinking-out-loud-trial-2023-05-01/> [accessed 15 July 2023].
[53]Chris Willman, ‘Ed Sheeran Trial Goes Into Deliberations After Judge Tells Jury: “Independent Creation is a Complete Defense’ (Variety.com, 3 May 2023)
<https://variety.com/2023/music/news/ed-sheeran-trial-jury-deliberations-testimony-copyright-case-1235602873/> [accessed 15 July 2023].
CBS News, ‘Ed Sheeran didn’t steal key parts of Marvin Gaye’s “Let’s Get It On”, jury finds’ (cbsnews.com, 4 May 2023)
<https://www.cbsnews.com/news/ed-sheeran-wins-copyright-trial-thinking-out-loud-marvin-gaye-lets-get-it-on/> [accessed 15 July 2023].
[54] Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd (2011) 191 FCR 444. Mark Davison, Ann Monotti and Leanne Wiseman, Australian Intellectual Property Law (Melbourne: Cambridge University Press 2008) 194-198.
[55] Plix Products Ltd v Frank M Winstone (Merchants) [1986] FSR 63.
[56] Gunnar Karnell, ‘European Originality: A Copyright Chimera’ in Jan Kabel and Gerard Mom (eds) Intellectual Property and Information Law: Essays in Honour of Herman Cohen Jehoram (London: Kluwer Law International 1998) 163.
[57] Norowzian v Arks Ltd [2000] EMLR 67.
[58] Bainbridge (n 25) 185-186.
[59] Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law: The British Experience 1760-1911 (New York: Cambridge University Press 1999) 51.
[60] Griffiths (n 21).
[61] Designer Guild Ltd v Russell Williams Textiles Ltd [2000] 1 WLR 2416 (Lord Hoffman).
[62] Baigent and Leigh v The Random House Group Ltd [2007] EWCA Civ 247. Richard Jones, ‘The Myth of the Idea/Expression Dichotomy in Copyright Law (1990) 10(3) Pace Law Review 551.
[63] Morrisey v Procier & Gamble Co [1967] 379 F.2d 675 (Judge Aldrich).
[64] Fritz Machlup and Edith Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10 Journal of Economic History 1, 9-26.
[65] Aplin and Davis (n 24) 21-27.
[66] Vargas (n 31).
[67] Ben Sisario, ‘Ed Sheeran Won His Copyright Trial. Here’s What to Know’ (New York Times, 3 May 2023)
<https://www.nytimes.com/article/ed-sheeran-marvin-gaye-copyright-trial.html> [accessed 15 July 2023].
[68] Lee (n 3).
[69] Paul Reskinoff, ‘Ed Sheeran Found “Not Guilty” of Copyright Infringement In “Thinking Out Loud” Court Battle — As Sighs of Relief Emanate From Music Industry Corners’ (digitalmusicnews.com, 4 May 2023)
<https://www.digitalmusicnews.com/2023/05/04/ed-sheeran-not-guilty-copyright-infringement-thinking-out-loud/> [accessed 15 July 2023]. Sisario (n 55).
[70] Brendan Pierson, ‘New York jury rules on Ed Sheeran copyright case’ (Camden Haven Courier, 3 May 2023)
<https://www.camdencourier.com.au/story/8182429/new-york-jury-to-rule-on-ed-sheeran-copyright-case/?cs=10531> [accessed 15 July 2023]. Vargas (n 31).
[71] Ben Sisario, ‘Ed Sheeran Wins Copyright Case Over Marvin Gaye’s “Let’s Get It On”’ (New York Times, 4 May 2023)
<https://www.nytimes.com/2023/05/04/arts/music/ed-sheeran-marvin-gaye-copyright-trial-verdict.html?searchResultPosition=1> [accessed 15 July 2023].
[72] MacQueen, Waelde and Laurie (n 35) 53.
[73] Biotrading and Financing OY v Biohit Ltd [1996] FSR 393; LA Gear Ltd v Hi-Tec Sports PLC [1992] FSR 121.
[74] Black v Murray (1870) 9 M 341.
[75] David Cohen, ‘Copyrighting the Dead Sea Scrolls: Qimron v Shanks’ (2018) 52(2) Maime Law Review 379.
[76] Jane Ginsburg, ‘The Concept of Authorship in Comparative Copyright Law’ (2003) 52 DePaul Law Review 1063.
[77] Interlego AG v Tyco Industries [1989] AC 217.
[78] Walter v Lane [1900] AC 539. Aplin and Davis (n 24) 107-109.
[79] Hyperion (n 14).
[80] Kevin Garnett, ‘Copyright in Photos’ (2000) 22(5) European Intellectual Property Review 229; Ronan Deazley, ‘Photographing Paintings in the Public Domain: a response to Garnett’ (2001) 23 European Intellectual Property Review 179.
[81] Bainbridge (n 25) 72. Antiquesportfolio.com PLC v Rodney Fitch & Co Ltd [2001] FSR 345.
[82] Temple Island Collections Ltd v New English Teas Ltd [2012] EWPCC 1.
[83] Interlego (n 69).
[84] Hal Varian, ‘Buying, Sharing and Renting Information Goods’ (2000) 48(4) Journal of Industrial Economics 473.
[85] Steel (n 30) 66.
[86] See Nichols v Universal Pictures Corp (1930) 2d 119 (2nd cir.).
[87] John Geiger and Howard Suber, Creativity and Copyright: Legal Essentials for Screenwriters and Creative Artists (Oakland: University of California Press 2019) 15.
[88] Contemporary English Version Bible, Ecclesiastes 1:9.
UCD Law Review 