In 1973, singer-songwriter Marvin Gaye reached number one on the Billboard Pop Singles chart with his new R&B hit for Motown Records, “Let’s Get It On.” Cowritten with producer Ed Townsend, the sensual single sold more than two million copies in the weeks after its release, and it helped solidify Gaye as the “Prince of Soul” and an American music icon.
Over 40 years later, English musician Ed Sheeran penned “Thinking Out Loud” with a chord progression similar to “Let’s Get It On.” The song was a worldwide hit that topped the charts in Europe and America and has been purchased or streamed more than 4,200,000 times to date. And winning a Grammy for Song of the Year 2016
Recently, the heirs of Townsend, Gaye’s co-writer, sued Sheeran, alleging that aspects of his song copied parts of “Let’s Get It On” — violating the heirs’ copyright — to $100 million in damages. For his part, Sheeran has said that he did not borrow from Gaye’s song and that any similarities result from the ubiquity of certain chords and chord progressions in pop music.
Marvin Gaye’s “Let’s Get It On” was released in 1973 and became an instant classic. The song has been covered and sampled numerous times. In 2014, Ed Sheeran released “Thinking Out Loud” with a chord progression similar to “Let’s Get It On.” The song was a worldwide hit, winning a Grammy for Song of the Year 2016.
In the legal battle of Griffin et al. v. Sheeran et al., the estate of Ed Townsend, co-writer of the iconic Marvin Gaye hit “Let’s Get It On,” alleged that Ed Sheeran and co-writer Amy Wadge copied elements of the 1973 song in their 2014 hit “Thinking Out Loud.”
Throughout the proceedings, Sheeran provided insights into the song’s creation, detailing the collaborative writing process with Amy Wadge. The demonstration aimed to showcase their work’s independent and original nature on “Thinking Out Loud.”
As the trial unfolded, the music industry and legal observers closely monitored the case, considering its potential implications for the ongoing discourse surrounding copyright protection in popular music. The verdict ultimately favoured Sheeran, marking a significant development in this high-stakes copyright dispute.
What is Copyright, and What Parts of a Song Are Protected?
The Copyright Act 1968 (the Act) governs copyright law in Australia. The Act provides creators of original works with exclusive rights to their work, including the right to:
- reproduce;
- publish;
- communicate; and
- adapt the work
These rights give creators control over their work and encourage the creation of new works.
Concerning music, copyright arises when a composer creates an original melody, harmony, or rhythm. The composer becomes the owner of the copyright in the music they make.
Copyright in music is not just limited to the musical composition itself. There is also copyright in the lyrics (if any) and music recordings. The person who creates the lyrics or records the music also has a copyright in their respective contributions.
Ed Sheeran recently emerged victorious in a highly anticipated copyright-infringement trial, where a jury ruled that he did not copy Marvin Gaye’s iconic song, “Let’s Get It On,” in his 2014 hit “Thinking Out Loud.” Filed in Manhattan federal court by the heirs of the song’s co-writer and composer, Ed Townsend, the lawsuit alleged Sheeran unlawfully incorporated the “heart” of Gaye’s composition, explicitly targeting “harmonic progressions” and “melodic and rhythmic elements.”
Understanding the Accusations
Sheeran faced accusations of copying the foundational musical elements of Gaye’s song, as opposed to the lyrics or overall feel. The trial focused on whether Sheeran replicated these building blocks, documented on sheet music filed with the United States Patent and Trademark Office.
Voices from Ed Townsend’s Family
Townsend’s family, vocal throughout the case, expressed their perspective on the matter. Kathryn Townsend Griffin, Ed Townsend’s daughter, emphasised the need to cease stealing creative works. Renowned civil-rights attorney Ben Crump, representing Townsend’s family, drew attention to the broader issue of appropriation of Black artists’ work, framing Sheeran’s alleged infringement as part of a historical pattern.
Sheeran’s History with Copyright Infringement Claims
This case is not Sheeran’s first encounter with copyright infringement allegations. Two other lawsuits, also filed in the same courthouse, involve claims of similarities between “Thinking Out Loud” and “Let’s Get It On.” In 2016, Sheeran faced a suit related to his song “Photograph,” settling with the songwriters of “Amazing.” Additionally, a lawsuit by Sami Chokri, alleging similarities between “Shape of You” and his composition, concluded with Sheeran’s victory in the UK.
Sheeran’s Testimony and Defense
During the trial, Sheeran personally defended himself, arguing that commonalities in chord progressions are inherent in pop music. He played examples, including mash-ups, to illustrate his point, emphasising the influence of artists like Van Morrison on “Thinking Out Loud.” Sheeran expressed his concern over the prevalence of such lawsuits, noting their potential impact on the songwriting industry.
The Jury’s Verdict and Subsequent Developments
On May 4, the jury delivered a verdict in favour of Sheeran, dismissing the claims of copyright infringement. Sheeran welcomed the decision but expressed frustration over baseless claims proceeding to court. Shortly after this victory, another judge dismissed a similar lawsuit brought by Structured Asset Sales, the company owning a portion of the original copyright for “Let’s Get It On.” The judge concluded that Sheeran’s alleged copied chord progression needed more distinctive for copyright protection.
To establish copyright infringement in Australia, you need to demonstrate:
- you are the owner of a valid copyright in the work;
- the other party has copied a substantial part of the work; and
- the copying was done without your permission or authorisation.
What Constitutes as ‘Substantial’?
It is the second element that is the most difficult to demonstrate. The term “substantial” in this context means that the infringing work copies a significant portion of the original work, whether in terms of:
- melody;
- lyrics;
- harmony;
- rhythm; or
- other elements of the composition.
What is ‘substantial’ will depend on the facts of each case. However, the tests to apply in determining if there has been a substantial reproduction of copyright include:
- if the part is essential, having regard to the work as a whole;
- whether it is an integral or material part; and
- if there has been an appropriation of the essential features and substance of the plaintiff’s work.
When it comes to music, considering whether a “substantial” part has been copied involves analysing whether the part of a song that has been copied is a recognisable and memorable melody, riff, or some other musical element that is an essential and distinctive feature of the original song.
Ultimately, determining whether a part is substantial depends on the specific circumstances of each case, including the nature and significance of the copied material and the overall similarities between the two works.
Conclusion
Copyright is an automatic right attached to original pieces of artistic works, including musical works. These rights give creators control over their work and encourage the creation of new works.
Ed Sheeran’s triumph in this copyright battle underscores the complexities surrounding artistic inspiration and legal disputes in the music industry. As the industry navigates the delicate balance between protecting intellectual property and fostering creative expression, Sheeran’s case is noteworthy in the ongoing dialogue about copyright in popular music.