Just the two of us? Olivia Dean, Bill Withers and the line between inspiration and infringement

How much does a song have to borrow before inspiration becomes infringement?

Tom Justice explores this question now hanging over Olivia Dean and, rather awkwardly, it involves one of the most recognisable songs in soul music.

On 22 October, Dean will take the stage at Newcastle's Utilita Arena as a nominee for the Mercury Prize, for the second time, this time for The Art of Loving. For a North East audience, that would be reason enough to pay attention.

But she arrives with another, less welcome headline: a fresh US copyright lawsuit over one of the songs on the album.

Filed in Los Angeles on 1 October, the case puts a 1981 hit and one of 2025's most acclaimed records at the centre of a familiar question in music law: where does inspiration end and infringement begin?

Full disclosure before we go any further: in my house, Olivia Dean has essentially achieved minor-deity status (there was a period when my four-year-old refused to brush her teeth unless she was allowed to watch the music video for “Lady Lady”). So, what follows - in which I entertain, purely professionally, the possibility that she might have copied someone else, consciously or otherwise - should be read as an act of considerable personal sacrifice.

What exactly is Olivia Dean accused of copying?

Mattie Music Group, trading as Bleunig Music and associated with Bill Withers' catalogue, has sued in the US District Court for the Central District of California.

The claim concerns Dean's “I've Seen It”, the closing track on The Art of Loving. The allegation is not simply that the two songs have a similar feel. The claimant says that “I've Seen It” copies protectable musical expression from Bill Withers' “Just the Two of Us”, particularly its melody.

And if that title has just started playing in your head, you are not alone.

“Just the Two of Us”, written by Withers, Ralph MacDonald and William Salter and recorded by Grover Washington Jr. with Withers on vocals, is one of those songs that seems to have become part of the collective musical memory. It reached No. 2 on the Billboard Hot 100 and won the Grammy for Best R&B Song at the 1982 Grammy Awards. It also features, arguably, one of the greatest saxophone solos of all time (I will die on that hill).

The problem for Dean is that familiarity with a song is not just a useful pop-culture fact in a copyright case. It can also become relevant evidence of access.

Notably, Dean herself is not currently named as a defendant, nor are co-writers Bastian Langebaek and Max Wolfgang. The named defendants include Capitol Records, Universal Music Group, Sony Publishing and Kobalt Music Publishing America, in connection with the recording, distribution, licensing or other commercial exploitation of “I've Seen It”.

The complaint seeks injunctive relief, damages, profits and costs.

When does “sounds like” become “copied”?

This is where music copyright becomes much more interesting than simply asking two people to listen to two songs and decide whether they sound alike.

Copyright protects expression. It does not give somebody ownership of every chord progression, rhythmic pattern, harmonic movement or musical idea that happens to appear in a successful song.

In the Ninth Circuit, copying can be established circumstantially through evidence of access and substantial similarity. But the relevant similarity must concern protectable expression, rather than unprotectable ideas or commonplace musical elements.

That distinction matters.

A song can share a chord sequence with another song without infringing copyright. Two songs can have a similar rhythm, genre or general mood. A familiar melodic feature may even arise independently.

Equally, a relatively small musical passage can be legally significant if it represents protected expression and has been copied.

So, the question is not simply:

“Do these songs sound alike?”

The lawyer's version is less satisfying:

What exactly is similar? Is that material protected? Was it actually copied? And does what was copied amount to a substantial part of the earlier work?

The claimant says that “Just the Two of Us” was widely disseminated and commercially successful, giving Dean and her co-writers a reasonable opportunity to have encountered it.

That is the access part.

But access alone is not enough. The claimant still needs to establish copying of protectable expression rather than independent creation.

And this is where the musicologist enters the story.

The musicologist's evidence

The claimant instructed musicologist Dr Alexander Stewart to analyse the two works.

According to the complaint, Stewart identified significant similarities which, in the claimant's view, go beyond ordinary musical building blocks and amount to protectable musical expression.

That will be important because, once a dispute gets to this stage, it stops being a question of whether an ordinary listener gets a vague sense of déjà vu. The court has to decide what musical material is actually being compared, whether it is protectable and whether the similarities are sufficiently persuasive to support a finding of copying.

The musicological evidence is therefore likely to be central to the dispute.

But it is worth keeping the legal position firmly in view: the allegations in the complaint are allegations, not findings by the court.

The case is at an early stage and the defendants have yet to put forward their substantive response.

Would this be different under English law?

The underlying question would be familiar, even though the legal framework is different.

English copyright law asks, broadly, whether the defendant copied protected expression from the earlier work and, if so, whether what was taken amounted to a substantial part of it.

“Substantial” is a question of quality rather than simply quantity. A relatively small part of a work can be substantial if it represents a significant part of the claimant's original expression.

That principle is particularly interesting in music, where sometimes a surprisingly small musical passage can be the thing that makes a song recognisable.

The English courts have also had to grapple with the uncomfortable possibility that copying may happen without the copier consciously deciding to copy.

In Sheeran v Chokri [2022] EWHC 827 (Ch), the High Court considered similarities between Ed Sheeran's “Shape of You” and the earlier song “Oh Why”.

The court emphasised that similarity alone is not enough. There must be actual copying, which can in principle be subconscious, but requires evidence of familiarity with the earlier work and a causal connection between the two works.

The court ultimately found that Sheeran had not copied “Oh Why”.

English law has long recognised the possibility of subconscious copying. In Francis Day & Hunter Ltd v Bron [1963] Ch 587, the Court of Appeal considered precisely that issue.

So, although the terminology and legal tests differ between the jurisdictions, the practical question is remarkably familiar:

Was the later song independently created, or did its creators appropriate protected expression from the earlier one?

Can you copyright a musical idea?

This is perhaps the most important point for musicians.

Music is built from a shared vocabulary. Songwriters work with the same twelve notes, the same basic chords, familiar rhythms and harmonic movements that have been used thousands of times before.

Copyright cannot turn that vocabulary into private property.

A songwriter cannot claim ownership of every four-chord progression or every musical idea simply because they used it first.

But that does not mean everything is fair game.

The difficult line is between using the same musical language and taking someone else's particular expression.

Or, put another way: are you speaking the same musical language, or have you lifted somebody else's sentence?

That is why cases like this rarely turn simply on whether two songs “sound alike”.

The real question is what has been taken, whether what was taken is protected by copyright, and whether the evidence supports copying rather than coincidence or independent creation.

And the law has to draw that line without making it impossible for the next generation of songwriters to use the musical vocabulary that everyone else uses.

Which brings us back to Olivia Dean

There is an obvious temptation in a case like this to put the two songs next to each other, listen for the similarities and decide that the answer is self-evident.

But copyright law is deliberately more demanding than that.

A listener hears a song as a whole. A court has to take it apart.

Melody. Rhythm. Harmony. Structure. Musical ideas. Expression. Access. Similarity. Causation.

And then, it has to put all of those pieces back together and decide whether what happened was influence, coincidence or infringement.

That is what makes this case worth watching.

And with the eyes of the UK music industry on Newcastle for Mercury Prize night, it is arriving at a particularly interesting moment.

At this point, I should probably reassure my daughter - just in case she has rapidly progressed from phonics to Westlaw - that Olivia Dean has not been found guilty of anything. The case is at an early stage, and the defendants have yet to put forward their substantive response.

For now, it is a fascinating example of the line music copyright law is constantly being asked to draw between inspiration and appropriation, between coincidence and copying, and between a song that sounds familiar and a song that has legally taken something from another.

If “Just the Two of Us” is now stuck in your head, I make no apologies. And, if you take anything away from this article at all, listen to Bill Withers Live at Carnegie Hall too. You are welcome.  

For more information on the issues in this article or any other music rights or intellectual property query, please get in touch with Tom Justice on 0191 211 7913 or email [email protected].