Ed Sheeran's court victory reveals the paradox of putting creativity ...

It’s easy to supply a punchline to Ed Sheeran’s threat to quit music entirely if he lost his latest copyright court case. So easy, in fact, that on Thursday morning, listeners to Boom Radio – one of those stations aimed at listeners deemed too old for BBC Radio 2, which is big on adverts for retirement homes and not typically a hotbed of biting satire and snark – could have heard their breakfast show DJ doing precisely that, willing on Sheeran’s loss.

It’s also easy to look askance at the aw-shucks tone of Sheeran’s response to his victory in the trial. “I’m just a guy with a guitar who loves writing music for people to enjoy,” he said. While is true it’s also a slightly reductive view of a notoriously driven and competitive artist who has sold 150m records in 12 years, had a vast influence over modern pop and demonstrated an impressively ability to assimilate musical trends from grime to Afrobeats into his immediately recognisable sound.

And yet it’s also easy to understand Sheeran’s apparent anger and frustration at yet another high-profile court case accusing him of theft – and not merely because he’s an artist who has always prided himself on his authenticity, given his self-propelled trajectory from sofa-surfing open-mic night singer-songwriter to one of the biggest pop stars in the world: “I’m real, I do it all, it’s all me … I didn’t go to Brit School,” he sang on his early hit You Need Me I Don’t Need You.

Had Sheeran lost the copyright case yesterday, while his retirement might have provided some relief to his detractors, it would have spelled very bad news for pop at large. It would have been a reiteration of the verdict in the 2015 Blurred Lines case, which, like Sheeran’s recent lawsuit, was brought not by a musician but a deceased musician’s heirs, and ruled that Robin Thicke and his co-writers had plagiarised the “feel” of Marvin Gaye’s Got to Give It Up. In response, 200 songwriters, ranging from members of Earth Wind & Fire to Linkin Park, filed an amicus brief protesting against the decision which punished “songwriters for creating new music inspired by prior works”.

Who gets sued for copyright infringement and who doesn’t seems weirdly arbitrary. In the Britpop era, Elastica settled out of court with Wire and the Stranglers, respectively, over their songs Connection and Waking Up, yet the glaringly evident similarity between Oasis’ Cigarettes and Alcohol and T Rex’s Get It On never occasioned legal action. The decisions can seem strange too: listen to Whigfield’s deathless novelty hit Saturday Night, then listen to Rub-a-Dub-Dub, a 1969 single by the Equals, and boggle that the latter’s author, Eddy Grant, failed in his attempt to prove he’d been ripped off.

Money may be one factor in the pursuit of these cases: last week, an entertainment lawyer told the Guardian that there was the whiff of a “celebrity lawsuit” about the Sheeran case. As for the decisions, music theory is a complex business, largely beyond the ken of people who don’t specialise in the field, but these plagiarism trials frequently rest on asking a jury of people who don’t specialise in the field to decide difficult musicological, even philosophical questions about where the dividing line between inspiration and theft lies. It’s a dividing line so shaky that not even musicians themselves really know where it lies – and they may well want to keep it that way.

Often their responses to alleged theft are tellingly equivocal. “Yes, it sounds like us, but so what?” remarked the Stranglers’ Jean-Jacques Burnel over the Elastica case, adding that if it were up to him, rather than his publishers, the case would never have been brought. His bandmate Jet Black actually thanked Elastica for drawing attention to the Stranglers’ oeuvre.

“Fine by me … it’s how rock’n’roll works,” shrugged Elvis Costello when earnest voices started protesting about Olivia Rodrigo’s Brutal borrowing from his track Pump It Up. Tom Petty was similarly blithe about the Strokes’ Julian Casablancas admitting they had “ripped off” Petty’s 1976 track American Girl on their hit Late Nite: “I was like: ‘OK, good for you … a lot of rock’n’roll songs sound alike,’” he said. However, he subsequently successfully sued Sam Smith and their co-authors over similarities between their Stay With Me and his own I Won’t Back Down, which prompts the question of why one was all right but the other wasn’t? (Perhaps it’s because Casablancas confessed while Smith claimed never to have heard I Won’t Back Down).

You could argue that the upswing in the number of claims of theft and of trials such as Sheeran’s points to an exhaustion of inspiration in modern pop, but there’s an equally persuasive argument that it says more about a latter-day obsession with authenticity. We live in an era in which streaming has decontextualised music: on streaming platforms, songs are stripped of their historical place and accompanying cultural baggage, and so the notion of being influenced by something is more easily reduced to simple accusations of plagiarism.

after newsletter promotion

Either way, the question of where said upswing leaves pop music is intriguing, after Sheeran’s win. Rather than settle out of court, he took the stand to prove a point and evidently hopes it will set a precedent. Which it might. No one wants a return to the times when Led Zeppelin could simply steal an old blues artist’s work and brazenly claim it as their own. But the recent court cases have not been straightforward or clearcut: instead they’ve tried to place clear definitions and parameters on mysterious, unquantifiable issues such as creativity and inspiration.

The prosecution would doubtless claim that a fear of being dragged through the courts should lead to greater originality on the part of songwriters, but that doesn’t seem to have happened. Instead, an extreme form of protective hedge-betting is afoot. In recent years the singles chart has been filled with songs that offer a particularly unimaginative cut-and-shut form of musical borrowing in which the chorus of an old song is just slapped into the middle of a new one. It’s the opposite of moulding an influence from the past into something new, or indeed of the reanimating effect that creative sampling can achieve – but everyone gets credited and paid so at least there’s no fear of anyone calling their lawyer. It’s an artless, unsatisfying cul-de-sac where everyone lives happily and creativity goes to die.