When does music creation become copyright infringement? In this case, popular singer songwriter Ed Sheeran was called out for his hit song “Photograph” copying  The X Factor winner’s song “Amazing.” The song “Amazing” was written by Leonard and Martin Harrington. The song was released in 2009 as a single won Matt Cardle the X Factor competition for 2010.

The copyright case, which was brought in 2016, reportedly settled out of court in April of 2017. The payout: $20 million. Additionally, as part of the settlement, the songwriters are now listed as co-authors of the song with Sheeran, along with other undisclosed terms.

What factors played a role in the outcome of this case?

Fair use

The use of work in a “fair” sense is open for debate by lawmakers and lawyers in court.

The Stanford University Library defines fair use as parody or for commentary and criticism purposes.

  • Examples of parody, also defined as comedic imitation, include Michael Jackson’s song “Beat It” being reframed by Weird Al Yankovic in his version “Eat It.” Another example is the popular children’s book Goodnight Moon by Margaret Wise Brown recreated as Goodnight Loon, for example.
  • Examples of commentary and criticism include using a quote from a song or book in a discussion in an article or work written by someone else.

Where is the line?

If a work’s use is transformative, in other words, the new work has transformed the original into a unique entity in its own right, then copyright infringement might not apply. However, fair use is open to interpretation, so the courts and attorneys are frequently called to intervene, interpret and argue the point of fair use.

In the Ed Sheeran case, Sheeran used a substantial amount of the work–over half–from the original. Thirty-nine of the song’s notes were said to have been exactly replicated from the original song created by Matt Cardle. The original songwriters produced the sheet music which proved the substantial infringement in court.

Have you heard ever a song that reminded you of another?