Ed Sheeran’s “Photograph” is the type of song that will have his fans singing along, that will bring other pop superstars like Keith Urban to admit being amazed with its tune craft. Unfortunately, Sheeran’s big hit from last summer will now reach a federal judge’s ears too because on Wednesday, it was alleged in a new $20 million lawsuit that something that otherwise brings good vibes constitutes “verbatim, note-for-note copying.”
Song theft lawsuits are increasingly common, but this one has plaintiffs who have written chart-toppers for many prominent artists in the industry including Kylie Minogue and Spice Girl Emma Bunton. The suing songwriters, Martin Harrington and Thomas Leonard, along with their publishing company HaloSongs, say Sheeran’s “Photograph” derives from their 2009 work, “Amazing,” which was recorded and released as a single by Matt Cardle, the winner of the 2010 season of the television competition show The X Factor. Perhaps most notably, the plaintiffs are represented by attorney Richard Busch, whose last big copyright lawsuit was on behalf of the Marvin Gaye family over the hit, “Blurred Lines.” That one resulted in a head-turning $5.3 million judgment.
“My clients are professional songwriters,” says Busch. “Their work is their life, and I am honored that they have trusted me with this very important case.”
If the credits of the plaintiffs going to potential access nor the bona fides of their attorney (who also prevailed in a sampling case on behalf of Madonna last week) don’t sufficiently impress, there’s also the complaint itself adorned with comparisons of chord progressions and musical notation of the two songs. Here’s a couple of examples:
The lawsuit attempts to make the case that “Photograph,” which Sheeran said in an interview “will be the one that will change [his]… career path” and reached No. 1 on the Billboard US Adult Top 40 chart in May 2015, is too similar to both the composition written by Harrington and Leonard as well as the version recorded by Cardle (which ironically, has a lyric about “the stairway to heaven always starts in hell”). In particular, there’s the chorus, which according to the complaint shares 39 identical notes - about 70 percent - in pitch, rhythmic duration and placement in the measure.
“The songs’ similarities reach the very essence of the work,” states the complaint. “The similarities go beyond substantial, which is itself sufficient to establish copyright infringement, and are in fact striking. The similarity of words, vocal style, vocal melody, melody, and rhythm are clear indicators, among other things, that ‘Photograph’ copies 'Amazing.’”
Sheeran, who was crowned the top musical act in the U.S. last summer by Billboard, will now have to answer these charges along with “Photograph” credited co-writer Johnny McDaid, Sony/ATV Songs, Warner Music and others including the recently sold Polar Patrol Music Publishing, each named as co-defendants. According to the complaint, the Sheeran song in controversy "is the most valuable of all of the assets of Polar Patrol, and increased the price of the sale. The profits of Defendants that Plaintiffs are entitled to recover thus include the portion of Polar Patrol’s sale price that may be attributable to the inclusion of the infringing 'Photograph’ composition.“
The profits of the defendants are estimated to exceed $20 million, and the plaintiffs are also seeking statutory damages and either an injunction or a running royalty. We’ve reached out to Sheeran’s representative and will update with any comment. According to the complaint, they’ve already been given notice of the allegations and continue to exploit "Photograph,” including licensing the song for the recently released major motion picture, Me Before You.
Before the lawsuit was filed, others noticed similarities in the songs, posting suspicions on Twitter and YouTube. The matter now goes to a California federal court.