Setting the Tone for Music Copyright: Eurovision loser wins copyright case

September 21, 2021

2 min read

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What's going on here?

Eurovision 2021 contestant James Newman has won a copyright case brought by another artist named Kelly-Marie Smith. The High Court rejected her claim that Newman’s song was substantially similar to her own.

What does this mean?

Just a few weeks after scoring zero points and coming last in this year’s Eurovision Song Contest, Newman was sued for copyright infringement by Smith. She claimed that some lyrics of “Waiting All Night”, a chart-topping hit co-written by Newman, copied those of her song, titled “Can You Tell Me?”.

Tom Weisselberg QC, Newman’s barrister, argued that any similarities in the lyrics of the two songs could be explained by the fact that they were “commonly used lyrics, musical phrases and rhythms, which are not themselves original”. He cited the phrase “tell me that you need me” as an example. The High Court accepted this defence and dismissed the claim.

What's the big picture effect?

In 2015, a California court ruled that Robin Thicke and Pharrell Williams’ hit song “Blurred Lines” copied Marvin Gaye’s “Got To Give It Up”, and ordered the pair to pay $5m in damages. Since then, the music industry has seen a marked increase in the number of copyright infringement claims, with Taylor Swift, Katy Perry and Childish Gambino amongst those embroiled in disputes. To read our reports on these cases, click here, here and here.

Newman’s case makes a fresh restatement of a key principle of copyright law: that a piece of work must be original to be protected by copyright. In so doing, it is likely to discourage the bringing of opportunistic litigation by artists where the allegedly copied lyrics, melodies or rhythms were not themselves original and therefore not copyright-worthy.

This will be music to the ears of major artists, who are less likely to become subject to challenges over the originality of their work. It is also a positive outcome for the music industry as a whole, as it strikes a more appropriate balance between protecting original works and facilitating the creation of new music.

Report written by Isobel Deane 

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