California Based Songwriters Claim The Song Is A Copy Of Theirs With 39 Identical Chorus Notes

An expert media lawyer at Irwin Mitchell believes that Ed Sheeran has at least a case to answer about copyright infringement after two California based musicians have announced that they plan to sue him over his song ‘Photograph’.

The two musicians, British Martin Harrington and Canadian Thomas Leonard, claim that out of the 61 notes in the song’s chorus, 39 are identical to the song that they composed for former X Factor winner Matt Cardle, ‘Amazing,’ in 2012.

The pair say that they composed ‘Amazing’ in 2009, whereas ‘Photograph’ was released in 2014. The two musicians say the similarities are "instantly recognisable to the ordinary observer".

The documents relating to the case, that were filed on Wednesday 8 June at LA’s federal court, say that ‘Photograph’ has sold more than 3.5 million copies worldwide and features prominently in Hollywood drama Me Before You.

The lawsuit says: "Given the striking similarity between the chorus of Amazing and Photograph, (the) defendants knew when writing, publishing, recording, releasing, and distributing Photograph that they were infringing on a pre-existing musical composition.

"The conduct of (the) defendants has been wilful from the inception of the creation of Photograph.

"The copying of Amazing by Photograph is breath-taking in its deliberateness, magnitude, and hubris."

As well as Ed Sheeran, other defendants being sued include co-writer for ‘Photograph’, Snow Patrol’s Johnny McDaid, as well as various divisions of Sony/ATV Music Publishing, Warner Music Group and its subsidiary, Atlantic Recording Corporation.

Martin Harrington and Thomas Leonard, along with their publishing company HaloSongs, want a trial and damages of more than $20m (£13.8m), as well as royalties from the song.

The lawyer representing the two musicians, Richard Busch, successfully represented the family of soul singer Marvin Gaye over Robin Thicke and Pharrell William’s song ‘Blurred Lines.’

Aurelia Butler-Ball, expert commercial and media lawyer at Irwin Mitchell, said:

Expert Opinion

“From the evidence we have seen so far, at the very least, Ed Sheeran will have a case to answer. If the evidence stands up in court, having that many identical notes will be hugely damaging, especially as it is in relation to the chorus of the song which is the most recognisable aspect of it.

“In the ‘Blurred Lines’ case, we saw how far the US courts were prepared to go in establishing infringement when they ruled that Robin and Pharrell had infringed Marvin Gaye’s song - “Got to Give it Up” - not because it had identical notes but because the “genre and feel” was the same.

“This is a much wider interpretation of copyright infringement than we would have here but if the courts apply the same rule to Ed’s case, he might be in trouble. We look forward to hearing Ed’s side of the story.”
Aurelia Butler-Ball - Partner