A music copyright trial began Monday in federal court in Manhattan to decide a lawsuit alleging Ed Sheeran copied his Grammy-winning ballad “Thinking Out Loud” from Marvin Gaye’s soul classic “Let’s Get It On.” “
Sheeran is expected to testify at the trial, which is scheduled to release a new album and embark on an extensive North American stadium tour within two weeks. The suit, originally filed in 2017, has been delayed several times.
The music industry is curious about its decision. Over the past decade, the business has been rocked by a series of infringement lawsuits involving questions about how much or how little copyright can protect pop songwriters’ works, and how vulnerable they are to legal challenges.
In 2015 a jury found that Robin Thicke and Pharrell Williams had infringed on the copyright of another gay song, “God to Give It Up,” from their hit “Blurred Lines,” and ordered them to pay more than that. $5 million in damages. The case shocked many jurists — and musicians, who believed Thickey and Williams were being punished for using basic musical building blocks, such as harmonies and rhythmic patterns, that had long been considered part of the public domain.
In 2020, an appeals court ruling upholding Led Zeppelin’s victory over a copyright challenge to its song “Stairway to Heaven” seemed to return the case law to more familiar territory. But plaintiffs are free to seek relief if they feel their rights have been violated, and arbitration hearings over music copyright are particularly unpredictable.
Here’s a guide to what to expect during the hearing.
How do the songs sound?
The case against Sheeran involved only the basic compositions of the two songs — their melodies, choruses and lyrics — and not the specific recordings.
Listen to Sheeran “Thinking out loud.”
Listen to Gaye’s song”Let’s get it on.“
Who are the plaintiffs?
Although the “Blurred Lines” lawsuit was filed by Gaye’s family, the plaintiffs in the suit are the heirs of Ed Townsend, a songwriter and producer who collaborated with Gaye on her album “Let’s Get It On” and shared writing credits with Gaye. Title song. (Townsend, who died in 2003, was the primary songwriter for “Let’s Get It On” and received two-thirds of the royalties from it.)
Why did it take so long to come to trial?
Townsend’s daughter, Kathryn Townsend Griffin, filed suit in 2017; his sister, Helen McDonald; and the estate of his former wife, Cherrygale Townsend. Since then there has been a series of delays.
In 2019, the judge overseeing the case, Louis L. Stanton stayed the hearing pending an appeal in the “Stairway to Heaven” case, which involves questions such as which aspects of a song are properly protected by copyright. After that appeal was settled, in March 2020, the growing coronavirus pandemic forced the “Thinking Out Loud” case to be adjourned again.
For much of the past year, lawyers for both sides have been preparing pre-trial documents on what evidence they might present at trial.
Which parts of the songs are in dispute?
A quirk of the law restricts which aspects of “Let’s Get It On” (1973) are under copyright. For many songs composed before 1978, only the contents of the sheet music submitted to the Copyright Office are protected (known as “deposited copies”). With “Let’s Get It On,” the score was skeletal: just chords, lyrics, and a vocal melody. Other key elements of the song, such as its bass line and signature opening guitar riff, are absent.
That is, the case primarily comes down to the chord progressions of the two songs, which are almost — but not quite — identical.
Both songs are based on a sequence of four ascending chords, but the second chord in “Thinking Out Loud” is slightly different from that used in “Let’s Get It On”. (A composer retained by the plaintiffs acknowledged the difference in the analysis presented to the court, but called the two chords “virtually interchangeable.”)
The case may depend on how unique this chord progression is. Sheeran’s lawyers argue that chords are common building blocks and are fair game for any musician. In court filings, Sheeran’s composer notes that more than ten songs, including hits like the Seekers’ “Georgie Girl” and Donovan’s “Hurdy Gurdy Man,” used the same basic sequence before “Let’s Get It On.” A guitar textbook submitted as evidence suggests a standard progression that any musician can use to write a song.
Plaintiffs argue that even though the chords are in the public domain, the specific way in which they are used in “Let’s Get It On,” including the song’s syncopated rhythmic pattern, is sufficient in the “selection and arrangement” of the elements to be protected. Copyright.
What are the stakes?
After the “Blurred Lines” ruling, musicians and legal scholars expressed concern that the case confused commonly understood rules about which aspects of music belong to an individual songwriter and which are free for any composer to use. There was an uptick in music copyright claims, and some songwriters reported second-guessing themselves in the studio to ensure their compositions remained separate.
Led Zeppelin’s case changed that trajectory, holding that some elements of creativity are so common that only “almost identical” versions infringe copyright. Some experts say they worry that Sheeran’s loss could lead to further disruption.
Jennifer Jenkins, a Duke law professor who specializes in music copyright, says, “If the most common chord progression in this case, set to a basic harmonic rhythm, is privatized, we’re going upside down, we’re taking away the essentials. Items in every songwriter’s tool kit.”
Townsend’s heirs say they are defending his work against another song that stole its musical composition, “Heart.”
What other cases involve these two songs?
Griffin v. The lawsuit, which Sheeran called, is one of three in the Southern District of New York involving allegations of copyright infringement on “Thinking Out Loud” and “Let’s Get It On.”
The other two were filed by Structured Asset Sales, a company that bought a stake in the rights owned by one of Townsend’s sons and owns an 11.11 percent interest in “Let’s Get It On.” Built Assets Sales is owned by David Pullman. Bowie bonds For David Bowie in the 1990s.
Of those two cases, one may proceed to a separate hearing, while the other is held pending resolution of the first case.
Has Sheeran faced copyright lawsuits before?
Yes. In 2016, two songwriters of the song “Amazing” performed by Matt Card, winner of the British television competition “The X Factor”, sued Sheeran, claiming that Sheeran had copied aspects of their song for his hit “Photograph”. A year later the case was settled, and the “Amazing” writers were added to the credits of “Photo”.
Last year, Sheeran successfully defended himself at trial in Britain in an infringement case involving another of his hits, “Shape of You.” Afterward, Sheeran spoke privately about the toll of defending against such accusations, saying the recent spate of lawsuits was “really damaging to the songwriting industry.”
“Pop music uses a lot of notes and very few chords,” Sheeran said in the video. Instagram. “If there are 60,000 releases every day on Spotify, coincidences will happen.”
He added, “It really has to come to an end.”
