Olivia Dean & Bill Withers copyright claim — how courts judge musical similarity & access

The latest high-profile music copyright dispute has placed singer-songwriter Olivia Dean under the spotlight following allegations that her song I’ve Seen It copies elements of Bill Withers’ Just The Two of Us.

Here, Samantha Thompson and Colin Bell from our intellectual property (IP) team explore the claim and reflect on the familiar questions about musical similarity, as well as the increasingly blurred line between inspiration and infringement. 

The claim: who’s being sued & why

According to various press reports, Mattie Music Group (who manages rights in Bill Withers’ catalogue) has commenced proceedings in California alleging that Olivia Dean’s I’ve Seen It contains “substantial similarities” to Just The Two of Us and the songs are so significantly similar that it cannot be explained as a coincidence. 

The claim has been brought against Dean’s record label (Capitol Records), its parent company (Universal Music Group) and other publishing entities. It is notable that neither Olivia Dean nor her co-writers have been named as defendants. 

The Claimant is seemingly looking to establish that Dean had clear access to the earlier song due to the enduring popularity of Just The Two of Us and argues that decades of radio play and commercial success would have given Dean and her collaborators ample opportunity to hear the song.

Further, they claim to have instructed a musicologist to analyse the two songs, who determined that there were “repeated copying” of the melody.

What must be proven? 

Although the proceedings have been filed in the United States, the premise is likely to be familiar to claims started in the UK. 

A copyright infringement claim is not established simply because two songs sound similar. 

The claimant must generally demonstrate two key elements:

1. Copyright subsists in the allegedly copied aspects of the earlier work.
2. Those protected elements were copied rather than independently created.
    

The second limb can often be the most difficult hurdle to overcome. As seen in previous disputes of this nature, claimants must typically show both substantial similarity and a reasonable basis for concluding that the later songwriter had access to the earlier work. 

A familiar debate 

The case is another in a growing number of copyright disputes involving major recording artists. Claims made against popular songs have the potential to generate significant damages and are therefore often settled to avoid risk. Often these matters are also settled with a writing credit that allows third parties to claim certain royalties.

Over the last decade, the music industry has seen similar claims involving artists including Ed Sheeran, Katy Perry, Taylor Swift, Robin Thicke and Pharrell Williams. These cases have prompted ongoing debate about how copyright law should apply to popular music, particularly given the limited number of notes, chord progressions and melodic combinations available to songwriters.

The concern for many artists is that finding similarities between songs is often relatively easy. The more difficult question is whether those similarities relate to genuinely protectable creative expression or merely reflect common musical building blocks that are available to all musicians.

As the Court of Appeal recognised in the dispute involving Katy Perry's Dark Horse, not every similarity between songs will be protected by copyright. Courts must distinguish between original creative expression and commonplace musical elements that are part of the public domain. 

Why this matters for artists, rights holders & music businesses

In this case, the claim feels relatively spurious and thin, with the similarities not as strong as in other previous claims. It is also notable that the claim has been made by the artist’s estate and one question is whether the artist themselves would have considered this to be an infringement of their work.

It remains to be seen whether the Olivia Dean claim proceeds to trial or is resolved before reaching court. However, regardless of the eventual outcome, the claim serves as another reminder of the increasing scrutiny faced by successful recording artists and their commercial partners.

For rights holders, the case reinforces the importance of active catalogue management and monitoring. For songwriters, producers and record labels, it demonstrates the need to document the creative process and obtain specialist advice where concerns arise regarding earlier works.

Talk to us

Our experienced IP team advises artists, rights holders and creative businesses on copyright protection, clearance and infringement claims across the music industry.

For specialist support, talk to our team by calling 0333 004 4488, emailing hello@brabners.com or completing our contact form.