What Is a Song?
The New York Times
Is it simply the music flowing out of your earphones? According to the law, the answer is a bit more complicated.
For most music fans, a song is a simple thing to define: It’s the melodies, the lyrics, the grooves that come out of your speakers.
It’s a much thornier question when it comes to copyright law, one that has been tested in a series of high-profile lawsuits over the last decade, involving stars like Ed Sheeran, Led Zeppelin, Pharrell and Robin Thicke. Is songwriting defined by what you hear on a recording, or the notes inked long ago on a piece of sheet music? Where does a composer’s work end, and a performing artist’s begin?
In other words, what, exactly, is a song, in the eyes of the law?
In many music copyright disputes, one of the main issues is originality, or how the law sets a boundary between creative expression that is the property of a single artist versus material in the public domain. Last year, a federal jury in New York heard hours of expert testimony about whether a syncopated four-chord sequence in Marvin Gaye’s “Let’s Get It On” was distinctive enough that Sheeran’s song “Thinking Out Loud” infringed on it — or whether, as Sheeran’s lawyers contended, those parts are generic “building blocks” that no musician can own. The jury ruled in Sheeran’s favor, finding that he and a co-writer had created their song independently and not copied from Gaye’s 1973 classic.
But a key question running through that trial was about something even more fundamental: whether the core of “Let’s Get It On” — and what is protected by its copyright — is determined by the sounds we hear on its original recording, or the notes written on yellowing sheet music stored at the Library of Congress.
That issue was at the center of an appeals court’s decision four years ago regarding Led Zeppelin’s “Stairway to Heaven,” and it is being considered in another appeal related to Sheeran and “Let’s Get It On.” Many experts believe it’s an underexplored question that gets to the heart of how copyright law intersects with music.
