Ed Sheeran will have to convince a New York federal jury next week that his 2014 hit song “Thinking Out Loud” didn’t copy from Marvin Gaye’s classic soul groove “Let’s Get It On,” the latest trial in an increasingly litigious music industry.
The rise in cases over the past decade has tasked judges and juries with delving into complex music theory and analyzing how musical building blocks—often uncopyrightable on their own—are strung together to create catchy tunes and hit songs.
The heirs of Ed Townsend, Gaye’s co-author for the 1973 tune, are arguing that Sheeran’s song copied the harmonic progression and melodic and rhythmic elements at the “heart” of “Let’s Get It On.”
The complaint, which was filed in 2017, points to videos of Sheeran’s live performances where he appears to seamlessly transition between “Thinking Out Loud” and “Let’s Get It On.”
But the legal standard for “substantial similarity” between two songs is far from clear, and higher courts haven’t provided enough guidance to calm the industry or to guide jurors through competing testimony from musicologists
“Is it necessarily the people who don’t understand the sorts of nuts and bolts of musical elements that make these decisions?” said Niall Fordyce, a musician and attorney at Collins + Collins LLP. “And the truth is, would it be any better if it was musically literate people?”
A ‘Blurred Lines’ Legacy
The modern rise in music litigation came from a landmark trial in 2015 where a Los Angeles federal jury found that Pharrell Williams and Robin Thicke’s “Blurred Lines” infringed another one of Gaye’s songs, “Got To Give It Up.”
The US Court of Appeals for the Ninth Circuit upheld the jury’s $7.4 million verdict in Williams v. Gaye, sending shockwaves through the music industry and opening the floodgates of copyright litigation.
“Similarities based on something like groove and feel” were suddenly ripe for potentially multimillion-dollar verdicts, said Christopher Buccafusco, an intellectual property professor at Duke University.
Sheeran is still facing two other copyright suits over the same songs brought by a company that owns royalty rights for “Let’s Get It On.” Other current stars like Katy Perry, Taylor Swift, and Dua Lipa have faced similar high-profile suits.
Many believe the 2015 case placed a chilling effect on songwriters and producers, who have increasingly sought litigation insurance policies and have been discouraged from speaking about prior music that inspired their work.
Litigation before the “Blurred Lines” case mostly focused on lyrics and melody, and more fundamental musical elements like rhythm and chord progressions were considered unprotectable by copyright.
“All of a sudden, here was a song that didn’t exactly copy any notes out of the composition, it didn’t sample, but nonetheless got this huge jury verdict for copyright infringement,” said Kristelia Garcia, a music copyright professor at the University of Colorado Boulder.
Jamming in Court
Under copyright law, one musical track generally has two associated copyrights: One protects the sound recording, and the other protects the underlying musical composition, which includes the sheet music and lyrics.
In cases involving musical composition, courts haven’t allowed juries to hear the sound recordings of the two songs; they could only compare the sheet music. The reasoning has been that a recording includes vocal tones and other instrumental elements that aren’t within the scope of the composition copyright, which could confuse the jury.
But the “Blurred Lines” case complicated that issue because Gaye, like many soul artists at the time, didn’t always write down the music he composed. When he did, it was often a very basic “lead sheet.”
At the trial, the judge allowed the jury to hear limited sound recordings and allowed Thicke to play tunes on the piano.
The US Copyright Office, in some cases, has allowed sound recordings to be registered as the musical composition in “recognition of the fact that requiring sheet music had some genre-based assumptions or racial overtones,” Garcia said. “Because not all music is going to be reduced to musical notation.”
Plaintiff Structured Asset Sales LLC is attempting that strategy in the other two cases brought against Sheeran . It wants to “establish that the real musical composition is captured in the sound recording and only in a very rudimentary way captured in the noted lead sheet,” said Charles Cronin, a musician and Los Angeles attorney.
Federal courts in New York aren’t required to follow precedent from the West Coast-based Ninth Circuit, but that case law can nevertheless be persuasive.
For the trial next week, Judge
Still Unclear
Five years after the “Blurred Lines” decision, the full panel of judges on the Ninth Circuit pared back some of its past precedent in Skidmore v. Led Zeppelin, upholding a jury verdict that found that the intro tune to Led Zeppelin’s “Stairway to Heaven” didn’t infringe an instrumental by the band Spirit.
The appeals court ruling did clarify some aspects of substantial similarity and made clear that foundational building blocks for music, like descending scales or sequences of half notes, aren’t protected by copyright.
The “Stairway to Heaven” ruling has generally helped defendants. The Ninth Circuit later upheld a judge’s decision to toss out a jury’s finding that Katy Perry copied a Christian rock group’s song.
In Sheeran’s case, the ruling has greatly reduced the scope of musical elements that the plaintiffs can discuss at trial, eliminating details about the bass and aspects of the chord progression and harmonic rhythm.
Defendants have also found success in arguing that the plaintiffs claimed copyrights are found so abundantly across music that they have become generic and are within the public domain.
The concept of “prior art,” which is only officially recognized in patent law, went from “being like it doesn’t exist to being basically required in these music cases,” Garcia said.
Sheeran is seeking to enter evidence into the trial that shows chord progressions found in “Let’s Get It On” that also appear in beginner guitar and piano instruction books.
Although the “Stairway to Heaven” suit may have reduced some of the “Blurred Lines” frenzy, attorneys say the case still didn’t clarify the “metes and bounds” of illegal musical copying.
“The plaintiffs in Led Zeppelin got to a jury. The plaintiffs here got to a jury,” Buccafusco said. “Every time you get to a jury, you’ve got at least a fifty-fifty chance.”
The case is Griffin v. Sheeran, S.D.N.Y., No. 1:17-cv-05221, jury trial 4/24/23.
To contact the reporter on this story:
To contact the editors responsible for this story: