Editor's note: On Thursday, a federal jury ruled in favor of Ed Sheeran, finding he did not copy Marvin Gaye's "Let's Get It On" when Sheeran wrote "Thinking Out Loud."
A copyright suit is being fought out in Manhattan federal court between pop singer-songwriter Ed Sheeran and the heirs of Ed Townsend, the co-writer of soul artist Marvin Gaye’s 1973 hit, “Let’s Get it On.” The suit alleges that Sheeran’s multi-platinum, Grammy Award-winning 2014 song, “Thinking Out Loud,” violates copyright law for hewing too closely in its chord structure to “Let’s Get it On.” Sheeran, however, claims that both songs are based on a common chord progression used in many pop songs, even bringing his guitar to the stand last week to demonstrate his writing process, and this week threatening to quit music entirely if he loses the case.
Forensic musicologist and professor at Boston’s Berklee College of Music Joe Bennet is watching the case closely, as its outcome could have serious ramifications for the future of popular music (regardless of whether Sheeran stays in the game).
“This would be a game changer for the world of songwriting,” says Bennet. “A simple chord progression that you find in basic books about music theory becomes owned by the Gaye/Townsend estates? And every time you wanted to play a song that went — [for example] C, E minor, F, and G as your four chords — you couldn't do it without paying a royalty to Marvin Gaye? It would be a very strange world to live in.”
Bennett says Sheeran’s pushack is a question of principle critical to upholding the rights of songwriters.
“The facts of the matter are — at least in my opinion — that he really didn't plagiarize anything here,” he says. “More importantly, he is standing up for the rights of songwriters everywhere to have a bunch of commonplace building blocks of music that we can reuse and recycle and put into any song while putting their own creative spin on it, as it were.”
Bennet wields a litany of go-to song examples that highlight just how common the similar chord progressions in both “Thinking Out Loud” and “Let’s Get it On” are. A peak case, he says, is the Australian folk-pop group The Seeker’s 1967 smash “Georgy Girl.” Despite its differences from the two songs at the center of the suit in terms of tempo and mood, it shares the basics of their sonic structures while also predating them.
Bennet argues that additional elements that make Gaye and Sheeran’s songs sound alike — a bass drum pushing on the downbeat, an ascending bassline — are similarly not necessarily protected by copyright. Something that is copyrighted must be both unique in the history of the world and invented by the copyright holder. In this case, Bennett says, if Sheeran’s defense team can demonstrate that Marvin Gaye's chord progression was a musically common element, then there's no copyright to protect.
“I think a lot of the time when people ask themselves [whether] one thing copied from another, they ask themselves a very simple question: How similar are the things?” he says. “But you've got to ask a slightly more nuanced question, which is, how original is the similar element itself?”
The rub remains in whether Sheeran used the same chords in the same way, like syncopation and rhythmic pattern. Bennett demonstrates that there are material differences between the two, but is concerned that those with untrained ears may be unable to tell.
“You've basically got here a couple of really common rock ballad pop ballad tropes being combined in a similar way,” he says. “And jurors may be unable to parse the difference between a commonplace element that appears in lots of songs, like a chord sequence or a half bar push, and a unique element that is protected by copyright, like a top line melody or a lyric. So I'm really concerned about this case, as there are a lot of people in the Berklee community here in Boston. All of us are watching this case with some trepidation.
More: “Blurred Lines” at center of plagiarism trial
The Sheeran case follows another Marvin Gaye copyright infringement suit from 2018, which resulted in Robin Thicke and producer Pharell Williams paying $5.3 million to the Gaye estate over similarities between Gaye’s “Got to Give it Up” and Williams’ and Thicke’s “Blurred Lines.” It’s the latest example of the increasingly murky boundaries and high stakes surrounding artist rights and compensation amidst industry upheaval wrought by streaming, AI, social media, and other paradigm shifts.
Earlier this year, sampladelic hip-hop pioneers De La Soul saw their landmark 1989 debut LP 3 Feet High and Rising at last added to streaming platforms a la Spotify and YouTube after years of painstaking negotiations over the digital rights to the hundreds of samples the group used to craft their influential, wildly imaginative compositions. The long-delayed release highlights the ongoing fight endured by hip-hop since its inception half a century ago; even as it has arguably become the dominant genre of popular music, its core tenant — sampling — remains legally dubious at best.
Meanwhile, the advent of AI-generated tracks, such as the viral song “Heart on my Sleeve” emulating Drake and the Weeknd, has stoked further copyright controversy and raises existential questions over artist rights and creative control. Pop-electronic artist Grimes spoke out on the issue this week, criticizing music copyright law as an impediment to creativity and launching the AI-powered software Elf.Tech that generates her voice for creative use in exchange for a royalty split.
Questions of ownership and creativity have also extended into the live music space, with a filmmaker facing legal threats from Coachella’s parent company for editing together a concert film of Frank Ocean’s fraught 2023 festival performance using more than 100 videos shot by concertgoers shared on social media. However Sheeran’s case shakes out, the broader climate points to an industry on the precipice of a seismic shift in the collective understanding of artistry.