Ed Sheeran Copyright Trial Hinges on Music Experts, Song History

Ed Sheeran’s closely watched music copying trial has featured clashing musicologists whose testimonies will guide a jury tasked with weighing similarities and differences in chord progressions and harmonic rhythms—complex concepts for the untrained ear.

Sheeran has also employed a now-common legal defense among high-profile defendants: arguing that although the chord progressions found in his song “Thinking Out Loud” and Marvin Gaye’s 1973 “Let’s Get It On” are similar, they are found so abundantly across music history that they can’t be protected by copyright.

The trial in Manhattan federal court has mirrored other recent music trials against Pharrell Williams, Robin Thicke, and Katy Perry, featuring piano demonstrations and often-complicated analysis of sheet music. As music litigation has been on the rise over the past decade, wins for either side have increasingly relied on the testimony and reports of a small group of musicologists who can parse the musical elements of popular songs.

The two opposing musicologists in the Sheeran case are the same expert witnesses from another high-profile copyright trial in 2016 involving allegations that Led Zeppelin’s rock ballad “Stairway to Heaven” copied a guitar riff from “Spirit” by the band Tarus.

Lawrence Ferrara, a music professor at New York University, served as an expert witness for Led Zeppelin and took the stand this week to argue that Sheeran didn’t copy from Gaye’s song.

Alex Stewart, a musicologist at the University of Vermont, was a witness on behalf of Tarus and the plaintiffs in the Sheeran case.

Led Zeppelin prevailed at trial and on appeal.

Ferrara told the jury on Tuesday that as much as 60% of his income comes from music consulting on legal matters, and that he writes two to three music reports per year that analyze whether one song copied from another.

Many of his reports are done well before litigation is initiated, and they’ve influenced decisions on whether potential defendants should settle early, he said.

Prior Art Defense

Ferrara took the stand this week to argue that “prior art” has consistently used the same chord progressions and harmonic rhythm found in both of the songs at issue, a defense once reserved only for patent cases.

He told the jury that he found 80 songs that contain the same chord progression as “Let’s Get It On,” of which 33 were created before the Motown classic was published. He also pointed to beginner guitar and piano manuals that highlighted the same chord progression.

“By the time ‘Let’s Get It On’ was published, that chord progression was already common,” Ferrara said.

Citing “prior art” wasn’t always common in copyright cases. While a valid patent requires an examination of past scientific knowledge and discoveries that might render the patent invalid as obvious, copyright law only requires that a copyrighted work be created independently.

A “small cadre of expert witnesses” have been responsible for the increased reliance on the concept, according to Kristelia García, a copyright law professor at the University of Colorado who co-authored a paper reviewing the uptick in cases using musicologists who examine past songs with similar musical elements.

Up until a few years ago, courts had rejected the prior art defense as reserved only for patent cases, Garcia told Bloomberg Law. But as music copyright cases have become increasingly complex, the argument went from “being like it doesn’t exist to being basically required in these music cases.”

Ben Crump Law PLLC and Frank & Associates represent the plaintiffs. Pryor Cashman LLP represents Sheeran.

The case is Griffin v. Sheeran, S.D.N.Y., No. 1:17-cv-05221, jury trial 4/24/23.