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.
The two passages are not, in my opinion, similar enough to insinuate copyright infringement. The only similarities are the general melodic contour and some (not all) of the chords. Even though the overall shape of the melodies is similar, they do have many differences, to the point where I would not say it is 'copied'. The chord progression under them is different, but most clearly the groove and delivery are not at all alike between the two pieces. Even though both Shape of You and No Scrubs are hit songs, I had never noticed the similarity until this. If this standard was enough to find copyright infringement, you could nail every third song on the charts somehow.
I’m a musician, composer, and occasional songwriter. I agree with this. I’d testify in court that this is not plagiarism or infringement in my opinion. Unfortunately people are suggestible. Tell them the melodies are the same, then play them, and people hear them as more similar than they are. It reminds me of that illusion where you play muttered speech with a caption and people “hear” the words in the caption.
Obviously these things are subjective, but I heard no resemblance at all. in that video. Until the second song played I had no idea what it was going to be, even though it was a hit when I was young and I know it well.
> 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 the case for, e.g., patents, but it is explicitly not how copyright works. Clean-room reproductions are valid defenses.
The court just has to weigh all the evidence. A lot of people have heard top-10 songs, so it would be hard to prove true independence. At an extreme though, if you could prove that somebody was perfectly isolated (e.g., if they had video evidence of not being exposed since that top-10 song was produced), a clean-room implementation from that individual would satisfy copyright law (mostly, give or take the as-of-yet mostly legally untouched minefield of deep-fakes). The only real question is where courts would draw a line between that kind of conclusive evidence and some random Joe pinky-swearing they produced the latest Taylor Swift hit in their garage and that it's accidentally kind of similar.
No such defense exists. If you tried making your own Mickey Mouse cartoon, Disney would pursue a copyright infringement case against you and would almost certainly prevail. (There are some fair-use defenses permitted like parody, but mere “clean room reproduction” is not one of them.)
(IAAL but this is not legal advice. Consult a licensed attorney if you want legal advice - most definitely NOT HN.)
Which isn't to say that clean-room isn't a valid defense, but rather that it's unlikely that somebody would (or could) independently produce something very similar to Mickey Mouse -- especially since nearly everyone had seen Mickey Mouse, so such an implementation would probably be tainted. If you can prove that you independently created that idea then it's still a valid _copyright_ defense (not a lawyer, yada yada).
There's a lot of necessary legal analysis missing here, and independent creation of an idea plays no part in it. Copyright protects creative expressions (i.e., artistic works), not mere ideas.
I think what you’re trying to say is that independent creation would be a basis to deny a prima facie copyright infringement claim: there is no infringement because no copy has occurred. But that’s a different thing than an affirmative defense. A defense is something you raise after admitting the truth of the claim: you’re basically saying, “yes, I did it, but I’m justified because XYZ.”
That seems really far fetched. The original versions sound nothing alike to me. They don't have the same vibe at all either and don't give the same emotion.
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 agree with US has so many scammers and fraudsters part.
But don't agree with the reason. There are tons of scammers and fraudsters in Japan too. Look at those new religions, elderly scammers, the copyright situation in Japan is not any better. It doesn't matter whether the society is collective or individualistic.
I have lived and visited urban areas all over. The only place I was repeatedly robbed was in the Netherlands. I don’t really buy that there are more scammers in the US than anyplace else.
1) An all powerful state is the logical conclusion of anyone who believes the collective is more important than the individual.
2) There were many benevolent all powerful states during the 20th century, but every single powerful state that believed in collectivism turned into a murdering hell hole filled with poverty and suffering where the poorest people risked their lives to flee to countries that believed the individual is more important than the collective.
>1) An all powerful state is the logical conclusion of anyone who believes the collective is more important than the individual.
That is an absolutely massive assumption not based in reality. Its possible to care about the system as a whole without thinking that there needs to be a centralized authority.
Indeed, caring for the society more than the individual and all-powerful governments are at best orthogonal, at worst inversely correlated.
Take Hong Kong for example. Citizens are mindful and care about the collective a lot, while having individual business to take care of. In daily life they are conscious about following the rules not because they are forced to but because if they didn’t the dense city would come to standstill within minutes. HK was never under a communist dictatorship.
Similar with Japan and Korea, which are not dictatorships and thus the case for an all-powerful government is very tough to make (a government that is democratically elected to enforce the will of the people is hardly an all-powerful government—it’s the people who are all-powerful in that scenario).
Meanwhile, over in the mainland China you get selfish drivers speeding through red lights, giant interchanges full of cars at standstill (presumably, due to such behavior), organized scam mafia employing trafficked children to “sell flowers” on subway stations, etc.
I’d argue that all-powerful government is in fact the supreme (but hidden) example of individualism where power-hungry individuals on top do everything to ensure they reign forever and cannot be replaced, everybody else be damned; and the rest of the country (whether consciously realizing it or not) follows the example set by their leaders.
A factor that might correlate with societies being less individualistic is ethnical homogeneity. I hope there are examples to the contrary, though.
And we experience tyranny of the individual at the expense of everyone else currently. This is why businesses destroy the environment, to save individuals money (corporations are individuals as well in this context). This is just one example and not all-inclusive
1: I don't know if either are a greater danger necessarily. Numerous laws or regulations that are overall harmful could be enacted on the behalf if individuals the same as the group although one could assume that the group has greater power in their numbers. But on the same hand, there are a same number if individuals so that seems difficult to judge to me
2: the more I think about this, the less I know how to answer
3: Currently in the US, the balance seems to be derived through voting and lobbying but large groups seem to have more power in that case, although it could be said that many of these groups aren't working for the greater good (what I refer to as the society or collective) but instead serve individual or private interests of a few
It seems that we need more robust mechanisms to ensure balance in society from my perspective
You really think US has so many scammers and fraudsters? You obviously have no idea how rotten outwardly-civilized societies such as South Korea are. The scale of investment frauds and various other scamming operations taking place there are a constant plague, and the regulators are comically unprepared to deal with it time after time. South Korea is also a notoriously group minded society built on Confucius ideals and a strong sense of nationalism / ethnocentrism. I've no idea how you arrived at your theory, but it just sounds incredibly adsurd to me.
How has South Korea changed in terms of culture and ideology over the last 100-200 years? Most places are adapting 'westernized' ideas because they appear profitable economically
My post is not whataboutism. It's pointing out the absolute dearth of evidence linking higher scamming rates to societies that value individualism.
A more proper name for this would be a "counter example", and it's something you should absolutely expect as a response when you put forth statements online.
I see where the disconnect is. I have a hard time placing your bar for being considered "westernized". Can you cite me the names of some nations that you regard as falling below the threshold?
That's a good question. Many nations have been taking up these ideologies. Many indigenous communities on the other hand would likely qualify as 'nonwesternized' but in terms of entire nations? Possibly Saudi Arabia?
Both ideologies have their pros and cons. Take a look at Shanghai right now to see the downsides of when the collective matters more than the individual.
> 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.
I believe it’s similar in music-related jobs. There’re always opportunities to earn money doing work for hire (scoring, mastering, arranging, performing), but they tend to not pay too well.
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.)
A derivative work is a work based on another work. If you can, indeed, prove independent creation-- you should be clear of copyright.
But even recording your development can't prove independent creation, after all you could have heard the other work off camera and merely be faking it.
Fans who go to shows, and most who listen to live music. People don't go to a venue and hope someone they like shows up. They want want to know beforehand, and are willing to pay the artist to show up even if they wouldn't want to otherwise.
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.
> IANAL but pretty sure it’s a loud “not unless you have a patent that they violated”.
If they have violated patents, trademarks, or copyright, you can sue them for that. For example, if they reused your copy, or if they reused your proprietary source code.
But you've constructed your argument around the "differently-branded" idea, suggesting that there is no copyright case. The analogue in music would be a different song. You can't sue Rihanna over Umbrella for ripping off Stairway To Heaven, because they are different.
And yet, you don't argue with that copyright lawsuits over software apps should be outlawed.
You won't deny programmers the right to sue, the way you would deny that right to musicians. Programmers are allowed to be first class citizens in your world, while musicians are relegated to second class.
> It’s like there’s an implicit patent of sorts on every melody.
That's incorrect. This is the realm of copyright. Patent laws are not relevant.
I mean if you write an app that walks and talks like my app, without stealing my source, it is fair game and I can do nothing. Unless I explicitly patented some specific aspects that you also implemented, or you stole my branding, or I can prove you stole my source code, you did not violate a single thing.
Music business, meanwhile, behaves as if everything was patented by default.
You keep saying "patented" and it keeps being wrong. This is the realm of copyright.
And yeah, if nobody violated any copyrights, patents, or trademarks of yours, you can't sue them.
The analogy in music is: if nobody violated any copyright, patents, or trademarks of yours, you can't sue them.
In other words, there is no difference. The fundamentals are exactly the same.
Yet you're trying to equate a situation where you explicitly spell out that no infringements of any kind occurred, with a situation where copyright infringment is alleged to have occurred.
Exactly. The situation is the same fundamentally, yet copyright gone wild makes music business behave like software business would if everything was patented all the time.
If you literally clone HN or LinkedIn (but call them something else), no one can sue you without having to prove you violated a patent or stole the source. No copyright violation occurred despite two identical products.
If you compose a harmonic progression that bears semblance to one in a song by a famous pop star, you can and will be sued. You are guilty of violating copyright because your music sounds similar. Even if you call your song something else and the lyrics, the arrangement, the instruments used, everything is different. Even if no one can prove you stole any intellectual property. Etc.
And the icing on the cake, now apparently even if you were first and they were inspired by your melody they still win if you did not bother to record your creative process while they faked a convincing recording of how they “came up” with your tune “on their own”.
> If you compose a harmonic progression that bears semblance to one in a song by a famous pop star, you can and will be sued. You are guilty of violating copyright because your music sounds similar.
You are only liable for copyright infringement if a court decides there is sufficient similarity.
Similarity of harmonic progression on its own is highly unlikely to be enough to persuade a court unless that harmonic progression is highly distinctive — there will probably need to be other contributing characteristics in order to persuade the court.
This test is exactly the same as with copyright infringement for the written word. In both situations, a court must make a judgment call, and persuading a court that infringement has occurred is nowhere near as trivial as you are suggesting.
It is hypocrisy to deny musicians the right to defend their intellectual property that others in different industries enjoy, on the bogus basis that infringement is different for music.
Lawsuits we’re talking about involve incredibly common harmonic and melodic progressions[0], but that’s besides the point.
Key aspects of software—the way it looks and works—aren’t auto-copyrighted (right?), even if they are quite original and unique. Many common UI (timeline, photo grid, etc.) or API patterns arise because they spring to multiple minds because they simply make sense in given moment in given shared context; just like that arbitrary melodic progressions spring to mind as you play, and yes who’s there to say it didn’t spring to someone else’s mind before.
As someone both into music and software production, I personally will continue finding the notion of harmonic progressions or melodies as automatically copyrighted (or even copyrightable) as weird. There’s just so much more than that to any song or music piece, and making a field of creative passion a legal minefield doesn’t seem conducive to its thriving.
> 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.
This isn’t analogous to the Ed Sheeran situation though. The analogy to the Ed Sheeran situation wouldn’t be someone copying software wholesale (obviously wrong) but another Twitter client using the ‘pull down to refresh timeline’ mechanism on an iOS app.
Twitter was granted a patent on "pull down to refresh". Patent law is a different areas of intellectual property law from copyright.
The songwriting case is a copyright case. The analogy for Twitter would be copying source code, but not with full fidelity. If it's not "obviously wrong" that's because it's not verbatim; it's up to the court to decide whether there is enough similarity between the two for infringement to have occurred.
For this we would need replicators and massive energy sources. Federation economy works because all basic needs can be met with technology. Even then, there are races that use money and some items are rare. For instance, not everyone has access to a star ship-- so that has value as a commodity. Another example is latinum which can't be replicated.
The basic needs of everyone on earth can already be met with today’s technology and resources. We would however need a rational and equitable allocation, which is impossible with production motivated by profit.
Perhaps some hyperbole there. Profit is feedback. It all depends on how the profit is calculated. 'How many people benefit' would be a productive profit-motive.
True about profit. But it does require you to perhaps charge more than you want.
If you want your music to be available to a global audience, you need some funding or revenue to promote yourself and to travel to share your music live. Because the record labels and travel industry might not be willing to give away their services for free.
It actually doesn't require you to charge more than you want.
It only requires you to charge IF you want to do something that requires you to (global popularity). Having music globally "available" has no cost, I suspect you are referring to globally popular music. And I think it makes sense for that cost to be beared by the artist since they are the one benefitting and desiring it anyway; no point in asking other people (record labels / travel industry) to do that service for free.
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 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.)