Music by VICE

We Asked Lawyers if the Disclosure Lawsuit Has Even a Shred of Legitimacy

The short answer: no.

by VICE Thump
Jan 23 2015, 12:00am

This week, British quasi-tabloid the Daily Mail published a particularly insane article concerning some wet, hot draaaaama between Disclosure and a previously unknown songwriter named Katie Farrah Sopher. According to Sopher, her book of lyrics were stolen by an abusive ex-boyfriend, who passed them along to his industry contacts. Those lyrics allegedly ended up in Disclosure's now-ubiquitous tunes, "You & Me," "White Noise," and "Latch." 

Sopher is suing for £200,000 (~$300,500) in damages. The subjects of the lawsuit include Guy and Howard Lawrence of Disclosure as well as collaborators Eliza Doolite (given name Eliza Caird), Sam Smith, and Aluna Francis and George Reid of AlunaGeorge. Yesterday, Disclosure denied any wrongdoing through a statement that pointedly noted, "we didn't get into this industry to steal other people's ideas." 

These kinds of intellectual property lawsuits involving music can be headache-inducing for those involved as well as anyone trying to follow the proceedings. In order to sort out some of the legal jargon, we turned to two entertainment lawyers from both sides of the pond—New York-based Anibal Luque, founding partner at Hoffman Luque LLP, and London-based Bob Page, partner at specialist media firm Mathias Gentle Page Hassan LLP—to find out what the hell to make of this mess. 

THUMP: How would someone like Katie Farrah Sopher go about proving Disclosure and AlunaGeorge stole her lyrics? 
Bob Page: Ms. Sopher would need to prove a number of things to the satisfaction of a judge: that she qualifies for copyright protection under English law; that she was the author of the lyrics she says she wrote; that those lyrics were original and disclosed to the alleged infringers; and that a substantial part of her lyrics were copied in the Disclosure songs. 

Anibal Luque: Some questions I would ask are: did her ex-boyfriend steal other things from her? Did she file a police report for the stolen items? Does she have emails or any other kind of writing that proves actual copying, or shows a chain of events for how the lyrics got from her to her ex-boyfriend, and from her ex-boyfriend to Disclosure? 

Ms. Sopher says her lyrics were inspired by her relationship with an abusive ex-boyfriend. In "You and Me," there's a line that goes, "Rolling with the punches / So they won't get inside our happiness." Even though "rolling with the punches" is a common idiomatic expression, can the content of these lyrics be used as evidence?
AL:
Even if she had documented evidence that she was abused by her ex-boyfriend, it wouldn't settle the issue of whether she wrote the lyrics, or if the ex-boyfriend passed them on to Disclosure. The content of the lyrics are only considered in the context of its similarity to the allegedly infringing work, not on how likely the author wrote them based on personal experiences. Bob Marley didn't have to actually shoot the sheriff to pen the lyrics to "I Shot the Sherriff."  

There's a case that's a really good example involving the Bee Gees and "How Deep is Your Love." They were sued for allegedly stealing part of a melody from another songwriter, but because the songwriter couldn't prove that the Bee Gees had prior access to his song, the court ruled in favor of the Bee Gees. The Bee Gees also had witness testimony supporting the claim that they independently created the work during a jam session, which is a defense to copyright infringement.

BP: While it would be extremely unfortunate if Ms Sopher was in an abusive relationship, references to such abuse in the lyrics she says she wrote would probably be irrelevant for the purposes of the claim against Disclosure. It would be considered circumstantial evidence at best. It could, of course, be a complete coincidence that both songwriters wrote lyrics that could be interpreted as references to abuse.

Ms. Sopher is claiming over £200,000 in damages. How does a plantiff come up with a particular dollar amount? Do you think she'll be able to get that much out of this lawsuit? 
BP: My guess is that whoever issued the claim for Ms. Sopher put a big value because the album has sold well and the songs are likely over time to earn a substantial amount of money from sales of recordings, airplay royalties and other sources. Since money filters in from overseas and can take a long time to do so, it would be practically impossible to put an exact figure on the damages at this stage.

AL: Not only do you have to value how much of her lyrics were used compared to the final version of the song, but how important were her lyrics to the overall composition. For example, with O.T. Genasis' "CoCo," the phrase, "I'm in love with the coco" is only six words, but it's the chorus and the heart of the work.

What usually ends up happening is that the parties agree to a settlement out of court, where the original author receives a flat fee or a percentage of the profits from the song, based on the songwriting royalties that would have been entitled to her. 

With court costs and lawyers' fees, it would cost a claimant in a case like this a shitload of money to potentially get paid? 
AL: If this happened in America, without prior copyright registration, she'd have to spend over six figures in legal fees just to get to the stage of knowing how much she's actually owed, and that doesn't guarantee a court will award her that amount. But if she filed her copyright prior to the infringement, she'd be able to recover her legal fees by the other party. 

BP: If she is paying lawyers privately, yes. Ms. Sopher claims that the book containing her lyrics went missing shortly after she split from her ex-boyfriend. That is very unfortunate [for her], as the lyric book is of crucial importance to her claim. Given the amount of the claim, and the apparent absence of critical evidence, I would not think this would be an attractive case for a third-party funder. She could engage a lawyer on a contingent, "damages-based agreement," but again, the missing evidence would make most lawyers find this sort of arrangement unattractive.

She might be representing herself, in which case she would only pay the court fees, but even those are not insubstantial. The Court fee is £1,515 ($2,277) to issue a claim for between £200,000 and £250,000, with a hearing fee of £1,090 ($1,639) payable before the trial. If she lost at trial she would in all probability be liable to pay her opponents' costs which would by then be very substantial—and might be as much as, if not more than, the £200,000 she is apparently claiming.

What do you think Disclosure will end up doing about this lawsuit? 
BP: Disclosure are published by Universal Music Publishing Group, so I would expect Universal to be a defendant to Ms. Sopher's claim. This would then put be in the hands of Universal's lawyers. I would expect Universal to take an active role in defending its writers and its own interest in the Disclosure songs.

AL: Artists and labels usually get their lawyers to negotiate who would be responsible for copyright infringement issues, sample clearances, and things of that nature. Some labels also take out liability insurance to protect against errors and omissions that result in intellectual property infringement. 

Even if a case has merit, Is it basically impossible for unknown songwriters to get paid if a larger artist steals their ideas? 
AL: Not at all, it depends on how well you keep your records. If you keep your records on an undated notebook with chicken scratch all over, well, you could've written those lyrics yesterday after you heard the song on the radio for all we know. But if you keep proper records and can show the date of creation precedes the other party, it helps. It's not the only decisive factor though. Access is another other factor. If you have proof that someone stole your work and used it with a third party like Disclosure, that's a much stronger claim. 

BP: It is important to note—and it may be surprising to some people—that there is no copyright in an idea. Copyright only subsists in the expression of an idea. If one songwriter's original work is demonstrably copied by another songwriter, then there may be a claim to be made. Whether either songwriter is established or not isn't really relevant, save to the extent that one may have more resources at their disposal than the other. If a less-established songwriter is aggrieved and does not have money to fund legal representation, it may still be possible to find someone to take up cudgels on his or her behalf, but there would probably need to be a lot of money at stake and the evidence of infringement would need to be pretty compelling. If what is said in the [Daily Mail] article is an accurate summary of Ms. Sopher's claim I suspect it will be perceived as spurious and defended vigorously. 

Michelle Lhooq will never hear "White Noise" the same way again - @MichelleLhooq