There is an ever-increasing number of instances around the world of musicians ending up in legal hot water for allegedly copying the songs of other artists.
For example, Ed Sheeran stated, “I feel like claims like this are way too common now” and threatened to quit music if he lost a copyright infringement case brought by Marvin Gaye’s estate. Sheeran was ultimately successful (in a process that only came to an end in June 2025, nearly a decade after the case began), as he was able to demonstrate that he wrote his song independently.
Other musicians, such as Nicki Minaj and George Harrison, have not been as lucky, and have been forced to pay royalties to other musicians whom they are alleged to have copied.
So, as an Australian musician, how can you make sure you’re more like Ed Sheeran and less like George Harrison (at least from a legal success point of view)? The answer lies in carefully documenting the creative process of writing your music, so this documentation can be used as evidence in court to prove that you independently created the song.
“Soundalike” music cases are increasingly common around the world
Around the world, and particularly in the US, there has been an increasing number of “soundalike” music legal disputes. The Musicians Institute Library website catalogues these cases, with examples including lawsuits against Dua Lipa, Childish Gambino, Radiohead, and Lana Del Rey. Even Led Zeppelin’s iconic opening riff in “Stairway to Heaven” has faced copyright infringement allegations.
In “soundalike” lawsuits, one artist claims that another musician copied their song (or a part of their song). In the US, one of the landmark cases is that of “Blurred Lines”, in which it was found that Robin Thicke and Pharrell Williams infringed Marvin Gaye’s copyright by imitating Gaye’s track “Got to Give it Up”.
In Australia, the classic example is the Men at Work case, where the band was found liable for copyright infringement for copying a riff from the 1934 children’s song “Kookaburra Sits in the Old Gum Tree” for their hit “Down Under”. More recently, US electronic music duo Glass Candy was held to have copied part of John Paul Young’s “Love is in the Air” in their song “Warm in the Winter”.
Sometimes these infringement claims are only brought many years after the song was written or commercially released. For example, the copyright infringement claim against “Down Under” was brought approximately three decades after the song was commercially released.
These cases are likely to become even more prevalent over time, as AI tools are increasingly used to scour libraries of songs to identify potential similarities that may be used to support claims for compensation. Additionally, publicly-available AI tools, trained on large catalogues of musical works, can now easily be utilised to assist in the creation of “soundalike” songs, thus increasing the level of concern generally about copyright infringement.
The “defence” of independent creation to a copyright infringement claim
Copyright differs from “monopoly rights” such as patents in that the copyright owner must show that the alleged infringer has copied the whole or a substantial part of the copyright work. In other words, there must be a causal link between the copyright work and the infringing work; it is not enough to merely show that the works are similar, as it is permissible for another artist to arrive at a similar work if they have done so by a process of independent creation. Theoretically, it is permissible for a song to be identical to another song, if the artist can prove that they created it independently.
However, in some circumstances, it can be sufficient for a copyright owner to establish that the artist had access to the original work, which creates an inference that copying has occurred, unless the artist can prove otherwise. This is particularly so given the prevalent use of music in television and film soundtracks, and in circumstances where music streaming services now make large catalogues of songs widely available worldwide. This increases the likelihood that an artist may have heard, or potentially had access to, the original work at some time prior to writing their own song, even if they don’t recall it.
Therefore, while independent creation does not operate as a defence to copyright infringement in the strict legal sense of the word, if an artist can show that they independently created their work, the copyright owner will be unable to satisfy the requirements of copyright infringement, and their case will fail.
The concept of independent creation often arises in the context of copyright cases concerning graphic design work, such as logo designs or advertising. This has led many graphic designers to keep design folders and logbooks of their work, to keep a record of their design process and assist them in evidencing independent creation, if they are required to do so.
Steps musicians can take to help establish independent creation
While musicians in “soundalike” cases almost invariably claim they independently created the song in question, this can be very difficult to prove in court.
In light of this, and given the drastic rise in “soundalike” cases, it has now reached the point where it may be best practice for musicians to keep records of the process of creation for their songs, similar to graphic designers.
One of the issues with “soundalike” cases is that the accused musician often has no records and in some cases no recollection, of how the song in question was created (given the songwriting process may have occurred many years before the case is brought). Songs can be written in a matter of minutes, or over a period of many days, months or years. It can be very difficult to show a process of independent creation in these circumstances, which can lead a court to find that an alleged infringer may have “subconsciously copied” another song.
Long before the advent of streaming services, Paul McCartney was famously so concerned he might have subconsciously copied someone else’s work when he conceived the melody to “Yesterday” (a melody that reportedly came to him in a dream), that he spent weeks investigating whether the tune was familiar to anyone else.
Carefully documenting the process of creation can assist in demonstrating an artist independently created the song in question and particularly help in rebutting any claim of subconsciously copying another work (as the likelihood of subconsciously copying anything is diminished in circumstances where the creation process is meticulously documented).
The “creation file” for a song might include, for example:
- Copies of previous recordings and demos for the song showing how and when it was developed, or videos of the song-writing process.
- Details of the dates on which the artist worked on the song and the work undertaken on each date.
- Details of who made contributions to the song (for example, the specific contributions made by each band member).
- To the extent common musical elements are used in the song, details of other works featuring these elements (as this can demonstrate these elements form a part of shared “musical language”).
- If the song samples other works, records of what works are sampled, when permission was obtained, and proof of this permission (including which specific works are covered by the permission, the terms of the permission and any price paid in return). For an example of how this can go wrong, Puff Daddy has revealed he paid Sting 100% of the royalties for his song “I’ll Be Missing You”, as he sampled “Every Breath You Take” without permission.
- Details of any non-copyright works used as inspiration for the song.
- Written records of the thought process behind the creation of the song, including the inspiration for its lyrics and musical arrangement.
- Information and records of any software used to create and mix the song.
- Details of any other musicians who collaborated on the song. As an example of why this is important, in 2018, songwriter Daniel Marino was awarded over US$44 million in relation to his uncredited contribution to Usher’s “Bad Girl”.
- Updates during the recording and/or performing process, as sometimes songs will evolve, or new arrangements or riffs will emerge, during the recording process or during live performances.
- Where possible, a time stamp or other means of dating the creation file (for example, sending a copy of the file to a trusted person or emailing it to yourself).
While keeping such a file will no doubt be seen as time consuming busywork, it could prove invaluable if accused of copying another song. For example, in another case involving Ed Sheeran (where the musician was accused of copying a song by Sami Switch), Ed Sheeran successfully relied on evidence of his independent writing process and the fact that he routinely credits other artists to demonstrate that he had not copied the hook in “Shape of You”.
The creation file should also be carefully reviewed when determining who to include in song-writing credits or royalty arrangements, as failure to properly attribute or compensate a contributor could give rise to other copyright issues in the future.
Takeaway for musicians
The possibility of a copyright infringement lawsuit is a very real threat for musicians. The last thing you want as a musician is to strike gold with a blockbuster hit, only to end up in a protracted legal dispute and eventually be ordered to pay a percentage of earnings on the song to another artist.
To bolster your position in response to any copyright infringement claim, it is best practice to keep a careful record of the process of creation for each of your songs, to be used as evidence in any eventual legal proceedings to demonstrate that you independently created the music.
This is similar to the approach taken by many graphic designers and, given the prevalence of “soundalike” music cases, we expect that doing so may soon become standard practice for musicians.