It was a simple ballad inspired by taking a picture of his beloved. But Ed Sheeran may be regretting ever picking up that camera, after settling a $20m (£16m) plagiarism lawsuit for the song Photograph.
The singer was accused of copying “note-for-note” from a song called Amazing, released by the X Factor winner Matt Cardle five years ago. Songwriters Thomas Leonard and Martin Harrington sued Sheeran, accusing him of “unabashedly taking credit” for their work.
The songwriters claimed the chorus of Photograph and Amazing shared 39 identical notes and that the similarities were “instantly recognisable to the ordinary observer”.
“This copying is, in many instances, verbatim, note-for-note copying, [and] makes up nearly one half of Photograph,” they said in a complaint lodged in the US in July.
Photograph, released from Sheeran’s album X, reached No 10 on the US Billboard Hot 100 and No 15 in the UK singles chart. Its video has more than 300m views on YouTube. Cardle’s track Amazing, meanwhile, peaked at No 84 in the UK in 2012.
Harrington, who has written hits for Kylie Minogue, 5ive and Emma Bunton, sued along with Leonard for damages in excess of $20m. They said Sheeran and his songwriting partner, Johnny McDaid from Snow Patrol, had “copied and exploited, without authorisation or credit … on a breathtaking scale”. Lawyers for Sheeran initially said the lawsuit made “scandalous allegations” and argued that it was “too complicated”.
An order signed by Judge James Selna at a California court on Monday said the case had been dismissed after an undisclosed agreement had been reached between the parties.
It is the second plagiarism lawsuit taken out against Sheeran in recent months, with an another ongoing case accusing him of plagiarising the melody, harmony and composition of Marvin Gaye’s Let’s Get it On in his track Thinking Out Loud.
Dr Joe Bennett, a musicologist based at Boston Conservatory at Berklee who specialises in music copyright, said th Photograph case was straightforward. Melodically “there are so many similarities between these two particular works, it is hard to dispute that it was obviously plagiarised and I’m not surprised they settled”.
Bennett said that for a plagiarism case to be successful, lawyers had to prove significant melodic similarity, access (that the accused would have heard the song), and the originality of the melody that was allegedly plagiarised.
While it was impossible to ascertain exact authorial intent, he said, it was doubful it had been a deliberate act on Sheeran’s part, comparing it with the recent case amicably settled between Sam Smith and Tom Petty, when it was found that Smith had accidentally copied elements of Petty’s track I Won’t Back Down.
“[Sheeran’s case] is most likely an example of cryptomnesia – inadvertent plagiarism – when you mistake a memory for a new idea, which can occasionally slip through the checks that songwriters and publishers make,” Bennett said.
Consultant musicologist Christian Siddell, who has worked on several high profile copyright cases, including one involving The Prodigy, said the settlement should not be interpreted as an admission of purposeful plagiarism by Sheeran.
The details of the settlement have not been released, but Siddell said Leonard and Harrington would be looking for songwriting credit and somewhere between 20% and 60% of the writer’s share of the profits of the song.
He said copyright disputes had existed ever since pop music began making money. However, he added, there had been an “alarming rise” in copyright cases, particularly in the US, since the trial in 2015 which saw the Marvin Gaye estate awarded $7.4m after Robin Thicke and Pharrell Williams were found to have copied Gaye’s music to create Blurred Lines.
In that trial and the Sheeran settlement case, those taking the lawsuits were represented by the lawyer Richard Busch.
“I would say that a slightly concerning culture is emerging around this becoming quite a lucrative enterprise for the lawyers involved in the States,” Siddell said. “It’s also no coincidence that the common thread between these cases is that they are being brought in America and by one particular lawyer.”
The Blurred Lines case has gone to appeal and Siddell said he and many in the industry expected the verdict to be overturned because “melodically there’s very little similarity – it sounded the same so that was enough to convince a jury”.
He added: “The processes of deciding these things is different in American courts, where they use a jury, as opposed to the UK you get an informed and knowledgeable judge who decides.”
Dennis Collopy, a senior lecturer in the music industry at the University of Hertfordshire, said that in plagiarism cases it was important to acknowledge the narrow musical confines of what makes a hit song. His own research showed that 25% of the No 1 singles in the US over the past 60 years were written in the chord of G.
“We celebrate the fact that successful songs tend to fit into quite a narrow band of melody and structure,” he said. “It has to be two minutes long, it has to be catchy and include the chord progressions we are familiar with. When it comes to pop music, it’s very hard to be completely original and successful at the same time.”
A spokesperson for Sheeran has not responded to the Guardian’s request for comment.