Ed Sheeran’s filming of his creative process for legal purposes hints at a world where it doesn’t matter if you can improvise a great melody in the moment out of nothing—if they happen to overhear you playing it, any plagiarist with a camera can record a convincing sequence of iterations leading up to your brilliant riff and successfully sue you into oblivion.
I wish for a world where musicians make music because they like it more so than to profit; a world where improvising on someone else’s musical idea is considered homage, not theft. (That said, I imagine many bands whose music I like were in fact inspired by fame and riches of rockstars before them.)
The problem as I see it, when you get that famous, you look like a piggy bank to some people. Say you were walking down the street and tripped over someones foot, most likely you apologize and move on. But if Ed was walking down the street and tripped over the wrong persons foot, that person would quickly turn it into "I'm suing", "you hurt my foot", "I will need therapy", "I think I need to go the hospital". Now none of those things may be true but they are all in service of one goal: "I just had an interaction with someone super famous and super rich, let me see how much I can extract from them for my own gain".
You’re acting like the equivalent of patent trolls were trying to shake him down. But that’s not the case: it was other singer-songwriters. And if it really is a coincidence it’s quite the coincidence: https://youtu.be/8OrT52ZToUk
(Ignore the title of that video and just listen/watch the content).
Now there are obviously many common chord progressions in pop music, but that is a bit different than a much longer melody. Enough so that the courts agreed. You also have to wonder if the success of that melody was already imprinted on his subconscious.
What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if you didn’t intend it to be a copy, then you’re still committing a copyright violation regardless of intent.
That's because the US (and many other 'westernized' locales) have this shitty ideology where the individual matters more than other individuals or the collective.
It's why the US has so many scammers and fraudsters.
Edit: this is from my perspective living in the US. I'm not saying that the US has more scammers than other places, just a ton due to this western ideology. My comment about the ideology includes places such as Europe and possibly even China now
> I wish for a world where musicians make music because they like it more so than to profit
Wish granted: that's the world you live in.
The vast majority of musicians don't profit from their art. Ed Sheehan was sued in part because he's part of the tiny, tiny percentage of musicians who do profit from their art.
The problem described here is so niche among musicians as to be irrelevant to most of them. It's only a problem for those at the very, very top of the musical earning scale.
I'd wager that less than a thousandth of a percent of the musicians on earth have to realistically worry about this.
Major respect to Elvis Costello going this route [0] in the recent Olivia Rodrigo media frenzies. "It’s how rock and roll works. You take the broken pieces of another thrill and make a brand new toy. That’s what I did."
> any plagiarist with a camera can record a convincing sequence of iterations leading up to your brilliant riff and successfully sue you into oblivion.
Except
1) The lawsuit failed.
2) It's not enough to show prior art. Ignorance of the other creation is a defense against copyright infringement.
3) Iterations are irrelevant.
> it doesn’t matter if you can improvise a great melody in the moment out of nothing
No one can. All great musicians are inspired by earlier performances.
This happens a lot already. Probably the best program code was written without compensation. There’s also that infamous OS that started as a hobby project and reportedly runs 70% of public servers on the Internet these days.
People who contribute to OSS have jobs to support themselves, but they also program outside of work, they enjoy doing it and they give away the results of their work for free. It’s puzzling but it turns out above certain point people don’t really care about making more and more money and start being motivated by purpose and desire to do something good.
Unlike music, there’re no money-hungry middlemen between those who enjoy writing software and those who want to run it.
Folks have to pay the rent somehow. Careers of passion are ripe for exploitation and burnout. Look at (American) teachers and game developers. That's not the model I want everyone to follow.
And maybe it's just me but AFAIK the vast majority of repos are personal projects done for fun, not for profit. Even if that number is inflated because of forks I'd just wager the majority of original repos are projects for fun, not profit
Copyright prohibits copying. It doesn’t cover independent creation. Recording the creative process helps to show the songs we’re created independently.
This is an incorrect oversimplification of copyright’s protections. Copyright is a bundle of exclusive rights, among them, the creation of derivative works.
(IAAL but this is not legal advice. Please consult a licensed attorney if you need legal advice, NOT HN.)
Not sure if it matters. Soon, the creative process will be replaced by some algorithm by OpenAI, anyway, and you just type "catchy song in the style of Ed Sheeran".
I wish for a world where people who would deny others the opportunity to profit from their creations are themselves denied. Let programmers sell t-shirts.
Open-source software aside—if I publish a paid app, and later someone else borrows my idea and publishes a differently-branded paid app that does the same thing, and it becomes popular enough for me to notice, can I sue them? IANAL but pretty sure it’s a loud “not unless you have a patent that they violated”.
In music business, if person A publishes a song, and person B borrows that idea[0] and publishes a song that uses it or even alludes to it, and that song becomes popular, there’s a clear lawsuit against B. It’s like there’s an implicit patent of sorts on every melody. Isn’t it at least somewhat mind-boggling?
[0] Bonus points if person B actually wrote the song independently and/or earlier than person A, but wasn’t running cameras to film the process.
It's not capitalism as much as human nature. People respond to incentives, be it social, monetary, or threat. Social only gets you so far, monetary is much better than force, and also produces better results
> I don't see how filming proves that you didn't steal a melody.
What you think of as "proof" and what serves as "proof" in court are wildly different things, because court cases are largely decided on subjective merits. ie You aren't likely to be part of the jury, so hypothetical situations are simply that.
I can imagine observing a live narrative that looks improvised and creative. At that point, I'm not sure what other material difference there needs to be for me. This kind of decision isn't a life-or-death situation, so the bar is lower than absolute certainty.
The best the video could do is support the defense around conscious intent. It’s not proof of that as you say because it could be a ruse (although a ruse may have discoverable evidence that makes doing it a really risky immoral gambit). It wouldn’t do anything to claims of subconscious intent (or even an honest mistake that still has liability under copyright) although the potential damages and settlement may be smaller in that case.
Composerily[1] on YouTube is well known for recreating popular songs (example [2]) or making songs in the style of a particular artist (example [3]). Unfortunately the full version of the recreations generally can't be included on YouTube because it would trigger the copyright infringement algorithm. Sometimes Composerily changes the song just enough to avoid the algorithm detecting the similarities, and sometimes Compersily will just provide short samples of the recreation. Through these videos you do get a better sense of how Western pop music is composed and why the choice of a chord progression isn't going to be deemed copyright infringement on its own.
Right. I remember a lawsuit from one of my favourite guitar players (Joe Satriani) vs Coldplay because of some part of the melody of a song... I thought that was so stupid. Both are great artists and composers. What if someone took a piece of your song and used it to inspire something new? That's called progress...
Plus, theres like only so much you can do with western music, and pop music in particular loves to lean on the same motifs over and over and over again. There is and will be compositional overlap. That anyone thinks they own anything in that space is absurd.
If you can't protect the trade secret with secrecy, then it doesn't deserve to be secret. Legal protections have shown, time and time again, that they fuck over inventors, creatives, and artists, in favor of encumbents seeking to consolidate power.
The current environment strangles remix culture nearly to death. To say nothing of greedy artists claiming ownership of a concept of notes. I thought you couldn't copyright an idea?
There is a reason patents are limited, and that public display of an invention pre-patent can be prior art. The reality is that once ideas are out in the world the creator is no longer in control (which is why we have to create systems of control via laws).
“He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me.” --Thomas Jefferson
This is a philosophical argument depending in your stance regarding ideas being something that can be owned or not. Machines or music doesn't really make any difference.
For folks suggesting that this won't prove you didn't plagiarize a melody somewhere else then "invent" it on video:
Melodies are often revised. Capturing the evolution of a melody may show that the final version emerged from an earlier version which bears less resemblance to the source alleged to have been copied.
If in fact the melody was plagiarized, then the video evidence might actually document an earlier version where the resemblance was closer. But I expect that Sheeran believes he is not plagiarizing and thus doesn't fear this possibility.
More likely, there is only an accidental resemblance between melodies that had no shared origin. In such a case, presenting the creative history would help in a court case.
If the plagiarism was intentional, it would be trivial for the artist to simply not document the portions of the process which would reveal it. He could work out his version from the original whistling to himself in the shower, then go to the studio and start playing other random melodies that he morphs over the course of a few hours into his intended version.
Of course, "proof" is beyond the point in these sort of civil trials, but even taken as merely persuasive evidence, I'm not very impressed.
I doubt that any of the high-profile melodic plagiarism cases has ever arisen from some moustache-twirling evil musician deliberately ripping off a melody. That's suicidal, and not guaranteed to produce a hit anyway. They all start with someone plagiarizing subconsciously.
If in fact the (unintential) plagiarism was real and the video record reinforced that, there would be incentive to withold the video evidence. But manufacturing evidence is extremely dangerous. It's like trying to spoof a journal from years ago — all it takes is one slip-up and you're doomed.
> That he's making this footage out of fear of litigation should bother you
I don't see how it protects him at all from litigation. But why would that bother me. Scientists use dated journals with unremovable pages to achieve a similar effect. Why would it bother me that he wants to document his process as legal protection?
> Ed Sheeran is not the Beetles.
I don't know what you mean by "not the Beetles"? The latest documentaries were about Queen, Elton John, and I think the Ramones. There hasn't been a Beetles movie since when?
He's far more financially successful than they were at the same point of their careers. If that's the cost of doing business, it doesn't even begin to move the needle.
I feel like it would be possible to write software to tell artists if a song is in danger of copyright infringement of other registered songs. Either by analyzing the raw audio like Shazam does or by feeding the software the transcribed notes on sheet music or something similar.
But I guess here the issue was more about whether or not the infringement was intentional.
It's hard to imagine creative people gathered around a computer waiting for it to judge their newest creation as sufficiently original or not. I imagine the scene would make a great intro for a dystopian sci-fi novel.
How does filming “song writing sessions” help here? A songwriter could be grocery shopping and hear a tune they like and copy it. I don’t understand how filming just sessions will protect anyone.
I think the key is the progression. If you see how a melody is formed, then it’s more likely to be organic. If you are just copying something, there is less of a progression as when you’re video recording, it’s already almost “done”.
Maybe if you were a mid-19th Century German composer it worked something like that. But that's just not how most songwriting works.
E.g., according to Mark Ronson:
1. Amy Winehouse casually spoke the following sentence in a conversation with Mark Ronson: "They tried to make me go to Rehab
but I said, 'No, no, no.'"
2. Mark Ronson said, "That could be a song."
3. They went to the studio where Amy Winehouse played a 12-bar blues chord progression on the guitar and sang those lyrics (using a simple pentatonic scale).
4. Mark suggested to speed it up and do a throwback Motown-era arrangement.
5. Done.
Unless they recorded their entire conversation, all you'd get is Winehouse sitting down with a guitar and singing the entire hook of the song.
If anything, anxiety-fueled "song formation" recordings will just cause songwriters to waste time going in the wrong direction. That is, they'll take their ready-to-go phrases or sub-phrases of music and sing fragments into the mic, in an order that seems as if they are constructing what they already have formed in their ear.
That doesn't answer the question. You could be out buying groceries, hear a good tune, and then pretend you invented it in steps when you get back to your studio.
Just like we pretend we figured out the tortoise/hare algorithm for finding loops in linked lists at interviews.
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I wish for a world where musicians make music because they like it more so than to profit; a world where improvising on someone else’s musical idea is considered homage, not theft. (That said, I imagine many bands whose music I like were in fact inspired by fame and riches of rockstars before them.)
(Ignore the title of that video and just listen/watch the content).
Now there are obviously many common chord progressions in pop music, but that is a bit different than a much longer melody. Enough so that the courts agreed. You also have to wonder if the success of that melody was already imprinted on his subconscious.
What I don’t know is if him having original thought versus attempting to copy matters. If I publish a poem, and then you try to publish the same words even if you didn’t intend it to be a copy, then you’re still committing a copyright violation regardless of intent.
It's why the US has so many scammers and fraudsters.
Edit: this is from my perspective living in the US. I'm not saying that the US has more scammers than other places, just a ton due to this western ideology. My comment about the ideology includes places such as Europe and possibly even China now
Wish granted: that's the world you live in.
The vast majority of musicians don't profit from their art. Ed Sheehan was sued in part because he's part of the tiny, tiny percentage of musicians who do profit from their art.
The problem described here is so niche among musicians as to be irrelevant to most of them. It's only a problem for those at the very, very top of the musical earning scale.
I'd wager that less than a thousandth of a percent of the musicians on earth have to realistically worry about this.
[0]: https://twitter.com/ElvisCostello/status/1409567943520931847
Except
1) The lawsuit failed.
2) It's not enough to show prior art. Ignorance of the other creation is a defense against copyright infringement.
3) Iterations are irrelevant.
> it doesn’t matter if you can improvise a great melody in the moment out of nothing
No one can. All great musicians are inspired by earlier performances.
People who contribute to OSS have jobs to support themselves, but they also program outside of work, they enjoy doing it and they give away the results of their work for free. It’s puzzling but it turns out above certain point people don’t really care about making more and more money and start being motivated by purpose and desire to do something good.
Unlike music, there’re no money-hungry middlemen between those who enjoy writing software and those who want to run it.
https://towardsdatascience.com/githubs-path-to-128m-public-r...
And maybe it's just me but AFAIK the vast majority of repos are personal projects done for fun, not for profit. Even if that number is inflated because of forks I'd just wager the majority of original repos are projects for fun, not profit
Plenty of people still do this. Probably more than ever before. Megastars like Ed Sheeran are outliers.
(IAAL but this is not legal advice. Please consult a licensed attorney if you need legal advice, NOT HN.)
https://www.youtube.com/watch?v=qNxuL-uIaTo
In music business, if person A publishes a song, and person B borrows that idea[0] and publishes a song that uses it or even alludes to it, and that song becomes popular, there’s a clear lawsuit against B. It’s like there’s an implicit patent of sorts on every melody. Isn’t it at least somewhat mind-boggling?
[0] Bonus points if person B actually wrote the song independently and/or earlier than person A, but wasn’t running cameras to film the process.
You could say this about any profession. Doesn’t seem compatible with capitalism though.
What you think of as "proof" and what serves as "proof" in court are wildly different things, because court cases are largely decided on subjective merits. ie You aren't likely to be part of the jury, so hypothetical situations are simply that.
I can imagine observing a live narrative that looks improvised and creative. At that point, I'm not sure what other material difference there needs to be for me. This kind of decision isn't a life-or-death situation, so the bar is lower than absolute certainty.
Would add that civil cases are tried on a preponderance of evidence standard, not beyond reasonable doubt.
Deleted Comment
Composerily[1] on YouTube is well known for recreating popular songs (example [2]) or making songs in the style of a particular artist (example [3]). Unfortunately the full version of the recreations generally can't be included on YouTube because it would trigger the copyright infringement algorithm. Sometimes Composerily changes the song just enough to avoid the algorithm detecting the similarities, and sometimes Compersily will just provide short samples of the recreation. Through these videos you do get a better sense of how Western pop music is composed and why the choice of a chord progression isn't going to be deemed copyright infringement on its own.
[1] https://www.youtube.com/channel/UC8Ujq8PBm0MWraaXd8MsIAQ
[2] https://www.youtube.com/watch?v=aTdmLoXled4
[3] https://www.youtube.com/watch?v=E5a4lntstgI&t=326
Once the artsy thing you did is out there, it is no longer yours. Period.
The current environment strangles remix culture nearly to death. To say nothing of greedy artists claiming ownership of a concept of notes. I thought you couldn't copyright an idea?
“He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me.” --Thomas Jefferson
Melodies are often revised. Capturing the evolution of a melody may show that the final version emerged from an earlier version which bears less resemblance to the source alleged to have been copied.
If in fact the melody was plagiarized, then the video evidence might actually document an earlier version where the resemblance was closer. But I expect that Sheeran believes he is not plagiarizing and thus doesn't fear this possibility.
More likely, there is only an accidental resemblance between melodies that had no shared origin. In such a case, presenting the creative history would help in a court case.
Of course, "proof" is beyond the point in these sort of civil trials, but even taken as merely persuasive evidence, I'm not very impressed.
I doubt that any of the high-profile melodic plagiarism cases has ever arisen from some moustache-twirling evil musician deliberately ripping off a melody. That's suicidal, and not guaranteed to produce a hit anyway. They all start with someone plagiarizing subconsciously.
If in fact the (unintential) plagiarism was real and the video record reinforced that, there would be incentive to withold the video evidence. But manufacturing evidence is extremely dangerous. It's like trying to spoof a journal from years ago — all it takes is one slip-up and you're doomed.
I don't see how it protects him at all from litigation. But why would that bother me. Scientists use dated journals with unremovable pages to achieve a similar effect. Why would it bother me that he wants to document his process as legal protection?
> Ed Sheeran is not the Beetles.
I don't know what you mean by "not the Beetles"? The latest documentaries were about Queen, Elton John, and I think the Ramones. There hasn't been a Beetles movie since when?
Deleted Comment
But I guess here the issue was more about whether or not the infringement was intentional.
I'm trying to decide if you (as a joke) plagiarized this idea from the popular TV show Silicon Valley.
Edit: https://youtu.be/sj9hesuQV6s?t=49
Deleted Comment
E.g., according to Mark Ronson:
1. Amy Winehouse casually spoke the following sentence in a conversation with Mark Ronson: "They tried to make me go to Rehab but I said, 'No, no, no.'"
2. Mark Ronson said, "That could be a song."
3. They went to the studio where Amy Winehouse played a 12-bar blues chord progression on the guitar and sang those lyrics (using a simple pentatonic scale).
4. Mark suggested to speed it up and do a throwback Motown-era arrangement.
5. Done.
Unless they recorded their entire conversation, all you'd get is Winehouse sitting down with a guitar and singing the entire hook of the song.
If anything, anxiety-fueled "song formation" recordings will just cause songwriters to waste time going in the wrong direction. That is, they'll take their ready-to-go phrases or sub-phrases of music and sing fragments into the mic, in an order that seems as if they are constructing what they already have formed in their ear.
Edit: clarification
Just like we pretend we figured out the tortoise/hare algorithm for finding loops in linked lists at interviews.