The heirs of the late Ed Towsend—who co-wrote Marvin Gaye’s ‘Let’s Get It On’, allege that Ed Sheeran’s 2014 song, ‘Thinking Out Loud’ has “striking similarities” and “overt common elements” to Gaye’s 1973 soul classic. The copyright infringement case was filed in 2017, with proceedings having commenced last April. On 4 May 2023, the jury ruled in favour of Mr Sheeran, concluding that he did not steal key components of ‘Let’s Get It On’ when he created ‘Thinking Out Loud’.
Subject of Copyright Claim
For many songs made before 1978, only certain aspects are covered by copyright law. In the case of ‘Let’s Get It On’ (1973), only the contents of the sheet music submitted to the Copyright Office (known as the “deposit copy”) are protected. The notation of ‘Let’s Get It On’ was skeletal—only chords, lyrics and a vocal melody. Other key aspects of the track, like its bass line and signature opening guitar riff, were absent. The primary concern in the lawsuit, then, is the chord progressions of the two songs.
At the start of the trial, Townsend’s team played a 2014 fan video where Ed Sheeran performs a live mash-up of ‘Thinking Out Loud’ and ‘Let’s Get It On’ in concert. Ben Crump, the lawyer representing the heirs of Ed Townsend, referred to the video as a “smoking gun” and claimed “the evidence will show that Mr Ed Sheeran… made a confession”.
Plaintiff’s Expert Evidence
The plaintiffs relied on the expert evidence of an expert musicologist, Alexander Stewart. Mr Stewart testified that in the opening of ‘Thinking Out Loud’, one of the four chords that Mr Sheeran plays is similar to the minor one that appears in the same position of the progression throughout ‘Let’s Get It On’.
Both songs are also based on a sequence of four chords in an ascending pattern; however, on ‘Thinking Out Loud’, the second chord in the progression is slightly different to the one used on ‘Let’s Get It On’. Mr Stewart acknowledged this difference in an analysis submitted to the court but called the two chords “virtually interchangeable”.
Mr Sheeran denied infringing the copyright of Mr Gaye and Townsend and told the Manhattan Federal Court in New York that if the jury finds him guilty, “I’m done, I’m stopping [music]”. He testified that he and a collaborator, Amy Wadge, wrote “Thinking Out Loud” independently in a quick songwriting session that took place in February 2014.
In response to the plaintiff’s “smoking gun”, Sheeran responded “Most pop songs can fit over most pop songs … if I had done what you’re accusing me of doing, I’d be a quite an idiot to stand on a stage in front of 20,000 people and do that.” He added that he often mixes songs with similar chords during performances to “spice it up a bit”. To prove his point, he played the chords from ‘Thinking Out Loud’ while singing multiple different songs, including ‘Tupelo Honey’ and ‘Crazy Love.’ He testified that he did not copy those songs when he wrote ‘Thinking Out Loud’.
In response to the plaintiff’s expert evidence, Mr Sheeran claimed Mr Stewart altered elements from ‘Thinking Out Loud’ in his analysis in order to prove his point. To demonstrate this, Mr Sheeran strummed his guitar and struck the major chord he claimed he has played at “every single gig,” and then, with a slight grimace, the minor one that Mr Stewart suggested.3 Mr Sheeran said, “It works very, very well for him, but it’s not the truth”.2 He further comments, “I think what he is doing is criminal… I don’t know why he’s allowed to be an expert”.
Defendant’s Expert Evidence
Mr Sheeran’s defence rebutted with their own expert musicologist, Lawrence Ferrara. In his testimony, Mr Ferrara was highly complimentary of ‘Let’s Get It On’, describing the opening line of the song, “Those blues notes are gorgeous”. Mr Ferrara claimed that the opening line of ‘Thinking Out Loud’ had no bluesy feel, nor a single flattened or “blue” note. “They are very different”.
He adds that the chord progression of ‘Let’s Get It On’—known as a I–iii–IV–V progression in musical jargon—was in “common use” before ‘Let’s Get It On’. He adds that the harmonic rhythm is “unremarkable”, and the melodies in question are “dramatically different” and only have “fragmentary similarities”.
In his testimony, Mr Ferrara identified over thirty-three songs using the same chord progression, all written prior to ‘Let’s Get It On’. These songs included ‘If I Had A Hammer’ (Pete Seeger), ‘Cruel To Be Kind’ (Nick Lowe), ‘I Started a Joke’ (The Bee Gees), ‘Fun, Fun, Fun’ (The Beach Boys), ‘Ziggie Stardust’ (David Bowie), ‘Crazy Love’ (Van Morisson), ‘Someone You Loved’ (Lewis Capaldi), ‘Georgy Girl’ (The Seekers), and ‘Hurdy Gurdy Man’ (Donovan).
All of these songs, and more, Mr Ferrara told jurors, were released before 1973 and used the same progression. Mr Ferrara testified, “It’s clear that ‘Let’s Get It On’ was not nearly the first song to use this chord progression”—in writing ‘Let’s Get It On’, Townsend was not stealing from earlier songs that also used the chord progression and likewise, Mr Sheeran was not stealing.
Importance of Expert Evidence in Music Copyright Cases
Most lawyers are aware of the need for an expert witness in music copyright disputes. The specialised knowledge of musical experts is a valuable resource allowing them to provide a comprehensive analysis on the similarities or differences between two musical pieces.
Key issues expert musicologists could provide guidance on may include:
- What elements are similar and to what degree are they similar?
- How important are the similar elements in causing a perceived similarity between the pieces?
- What is the significance of the similar elements to the musical composition as a whole?
- Are the similarities obvious or subtle?
- What elements are dissimilar and are they more important to the underlying compositions than the similar portions?
- What other musical factors could have an influence on the similarities between the pieces?
- Prior works, such as earlier pieces of music with passages that are similar or identical to the relevant portions of the music at issue.
- Musical composition traditions, such as basic popular song form in which chorus and verse sections alternate.
- Standardised musical formulas or procedures, such as the I–iii–IV–V chord progression, which was the subject of the above dispute.
It is clear that the input of an expert musicologist is most valuable prior to filing a complaint. At this stage, an expert can determine how strong a musical case the plaintiff has, target any weak spots, and advise the lawyer on how best to present the musical issues. A client or lawyer may even reconsider filing a complaint following the analysis of a musical expert.
The same concept applies to a client defending a copyright infringement claim. The earlier the assistance of an expert musicologist is sought, the stronger their defense. The musical expert will be able to evaluate the substance of the claim and identify any weaknesses in the defendant’s position, especially where similarities appear obvious and are easily demonstrated to a layperson.
Expert musicologists are essential in music copyright infringement disputes. Their specialised knowledge equips them to comment on aspects of music, which even most talented musicians would be unable to assess in a manner that is free of bias and satisfactory to the Court.
Musical experts should ideally be retained prior to filing a complaint, as their analyses can identify musical issues, weak spots and potential contradictions. These findings will serve to inform the lawyers’ approach, assist the expert when testifying on key points, and may even discourage pursuing a potentially frivolous complaint.