1) The Scope of Copyright Protection
Both parties agreed that the LGO deposit copy includes the composition's key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure, but Townsend argued that the composition is embodied on the Gaye recording.
In doing so the court considers, whether an average lay observer would recognise the alleged copy as having been appropriated from the copyrighted work. However, where a work has both protectible and unprotectible elements, the analysis must be more discerning, and involves extracting the unprotectible elements from the consideration. The Court then only asks whether the protectible elements, standing alone, are substantially similar.
In the present case, both parties submitted musicologist reports and agreed to some similarities between the songs such as the I - iii - IV-V harmonic progression, harmonic rhythm with anticipated
|Ed Sheerans in the |
music video for TOL
The Judge noted that the key, tempo, meter, and genre of the two compositions are similar , but are unprotectable elements. Sheeran pointed to other elements - song structure , lyrics , and tone - to highlight the difference in "total concept and feel" between the works; submitting that TOL is characterised by somber, melancholic tones, about long-lasting romantic love, whereas LGO is a "sexual anthem that radiates positive emotions and encourages the listener to get it on".
In light of which, the judge held that the question whether TOL is substantially similar LGO should be determined by trial rather than summarily.
3) Is it Infringement or Are The Parts Taken Common Place?
|Who you calling common place?|
Photo: Isola greca
The parties also dispute whether the harmonic rhythm of that four-chord progression - the second and fourth chords being "anticipated" or placed ahead of the beat - is protectable. Sheeran says its a common place technique, Townsend claims its distinctive.
Both disagreements precludes summary judgment since the question of whether the elements warrant copyright protection is a factual question to be determined at trial.