After six years of battling, Ed Sheeran has won a music copyright case relating to Marvin Gaye’s 1973 hit, Let’s Get It On. What, if anything, does this mean for songwriting?
On the 4th of May 2023, a jury in New York ruled that British singer-songwriter Ed Sheeran was not liable for copyright infringement in a six-year-long music copyright case. Having been closely followed globally by the music and entertainment industry, the verdict will likely be viewed as a significant victory for songwriters.
If you’re thinking to yourself, “Isn’t this old news?”, that may be because this isn’t Sheeran’s first time defending his songwriting in court. This case revolved around whether Sheeran’s hit song, Thinking Out Loud, ripped off Marvin Gaye’s Let’s Get It On. Just under a year ago, in June 2022, Sheeran was sued by two artists for copyright infringement over 2017 hit, Shape of You.
2022 Shape of You Copyright Case
By now, Ed Sheeran is no stranger to music copyright, and indeed the ways in which it can be used and perhaps manipulated. Following two copyright lawsuits in half as many years, it would be understandable if the singer felt he had a target on his back.
Grime artist Sami Chokri and his co-writer Ross O’Donoghue claimed that Sheeran had ripped off their 2015 track, Oh Why. In court, Sheeran claimed to have never heard the song before the lawsuit came about. As such, the judge concluded that the pop star “neither deliberately nor subconsciously” copied Chokri.
During the trial, Sheeran frequently sang or hummed excerpts from tracks including Nina Simone’s, Feeling Good, and Blackstreet’s, No Diggity. This was in a bid to demonstrate how common the melody used in Shape of You is throughout contemporary music.
Despite prevailing in this lawsuit, it appears Sheeran’s demonstrations failed to speed up the Marvin Gaye case.
Thinking Out Loud Music Copyright Lawsuit
This lawsuit was brought forth in 2017 by the heirs of the late Ed Townsend, who co-wrote the Gaye song, claiming that Sheeran and his record label Warner Music Group and his music publisher Sony Music Publishing had infringed on their copyright interest in the Gaye song. Kathryn Townsend Griffin, Townsend’s daughter, said she had to protect her “father’s legacy.”
During the trial, Sheeran and co-writer Amy Wadge testified that they did not copy Let’s Get It On, and Sheeran said that he only had a passing familiarity with the song. He argued that Thinking Out Loud was inspired by Irish musician Van Morrison.
Before a verdict for the case was reached, Sheeran had claimed that he would quit music if he lost. The singer said, “If that happens, I’m done, I’m stopping. I find it really insulting to devote my whole life to being a performer and a songwriter and have someone diminish it.”
In Sheeran’s Defence
Ed Sheeran and his co-writer, Amy Wadge are no strangers to the foundational elements of music. One hurdle in this trial, and similar cases, is explaining the basics of songwriting to those unfamiliar with it.
Sheeran’s lawyer, Ilene Farkas, argued that similarities in chord progressions and rhythms between the two songs were basic musical building blocks, and songwriters must be free to use them. “These are basic musical building blocks that songwriters now and forever must be free to use, or all of us who love music will be poorer for it,” she said. Farkas also addressed the court, stating that the similarities between the rhythms and harmonies in both Sheeran’s and Gaye’s songs were “the letters of the alphabet of music”.
Most musicians are familiar with the idea that “nobody can own a chord progression”. This notion largely encapsulates this particular music copyright lawsuit. However, the plaintiff’s legal team were adamant that the infringement went deeper than that.
The Townsend Team’s Argument
In response to Farkas’ statements relating to the fundamental building blocks,
Keisha Rice, was representing the heirs of Gaye’s co-writer Ed Townsend. In response to Farkas’ statements relating to the fundamental building blocks, Rice said her clients had not claimed to own basic musical elements but rather “the way in which these common elements were uniquely combined”.
Last week, a video in which Sheeran performs a mash-up of Thinking Out Loud and Let’s Get It On was referenced in court. Another of Townsend’s heirs’ attorneys, Bun Crump, called the video a “smoking gun“. Crump intimated that Sheeran knowingly stole elements of Gaye’s hit song, as demonstrated in the video. In fact, Crump claimed the performance was tantamount to a confession from Sheeran.
Shooting Blanks at Music Copyright
Backing Ed Sheeran, Ilene Farkas rebutted Crump’s smoking gun comment by suggesting it was “shooting blanks“. In her closing statement to the Manhattan federal court, Farkas asked, “He did a mashup one night. That’s a plaintiff’s confession, their smoking gun?” Sheeran also argued that if he had actually copied the song, he would be quite foolish to perform it in front of 25,000 people.
Farkas went on to highlight that neither Sheeran nor Wadge were writing musically or lyrically about “getting it on”. The intention behind Sheeran’s song is completely dissimilar.
Additionally, Sheeran’s musicologist, Dr Lawrecne Ferrar, told jurors he found 80 songs that contain the same chord progression as “Let’s Get it On,” with 33 coming before the Motown classic was released.
The Future of Music Copyright Following Sheeran’s Win
Before jurors made a decision on this case, the judge reminded them that independent creation is a complete defence, no matter how similar. After three hours, the jury found in Sheeran’s favour.
Although relieved by the verdict, the singer/songwriter admitted he feels frustrated “baseless claims” like this make it to court in the first place. He vowed that he will never allow himself to be “a piggybank for anyone to shake”.
Whilst this ruling suggests that songwriters should feel more free and able to use basic musical elements without fear of being sued for copyright infringment, it hasn’t solved the issue entirely. Despite the win, Sheeran is still facing another copyright lawsuit over Thinking Out Loud from a company owned by investment banker David Pullman, which holds copyright interests in the Gaye song.
Ultimately, whilst music copyright lawsuits like this one will continue to exist, this particular case may set somewhat of a precedent for future cases involving similar claims. The iconic Four Chord Song from comedy group, Axis of Awesome has resurfaced as people remind each other how easy it is for songs to share basic elements.