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May 12, 2023 | CopyrightEntertainment

Why Ed Sheeran Won: Not All Copying Constitutes Infringement

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Author(s)
Marc D. Ostrow

Senior Counsel

Carlianna Dengel

Associate Attorney

Ed Sheeran has recently emerged victorious in a recent copyright lawsuit brought by the estate of songwriter Ed Townsend, co-author of Marvin Gaye’s hit song “Let’s Get It On.”  The lawsuit alleged that Sheeran’s hit song “Thinking Out Loud” copied key elements of the Gaye song, the harmonic progression and melodic and rhythmic elements that plaintiffs claimed constitute the “heart” of the song.  The lawsuit resulted in a highly publicized trial in Manhattan federal court, which included testimony from Sheeran performing for the jury.  On May 4, 2023, the court found in favor of Ed Sheeran, issuing a verdict that he did not commit copyright infringement.  While the lay listener can clearly hear similarities between the two songs – and there’s video online of Sheeran doing a medley of the two songs, which Gaye’s attorney described as a “smoking gun” of copyright infringement – we’ll briefly review why Ed Sheeran won the case and how the verdict affects musicians.

Building Blocks of Music are Not Copyrightable

The main similarities between “Let’s Get It On” and “Thinking Out Loud” are the chord progression and harmonic rhythm.  However, chord progressions are not copyrightable.  Many thousands of songs are built on the same sequence of harmonies, i.e., chord progressions such as a circle of fifths or falling thirds (think 1950s do-wop hits).  Similarly, common song structures such as verse/chorus, AABA or a 12-bar blues, are also not copyrightable and are free to use by any songwriter.  These are among the essential building blocks of music, and have been used in countless musical works from the 1700s through today, including familiar works across classical, jazz, blues, rock, country and every other genre.

Idea/Expression Dichotomy

The “building blocks” of music, which also include common cadences (i.e., typical endings of musical phrases which countless songs have in common) are considered to be ideas or scenes-a-faire, a fancy phrase for something that is endemic to a particular genre.  For example, having the hero ride off into the sunset on his horse in a Western is not copyrightable.  One can’t copyright the idea or a concept of the hero riding off into the sunset, but one can get copyright protection for a particular version of that scene.  Section 102(b) of the Copyright Act states that concepts and ideas are not protectible, only particular expression of those ideas.  Going back to music, the “feel” or “groove” of a song is generally considered a non-protectable concept or idea.  To allow the basic “ideas” of music to be granted copyright would stifle creativity and innovation in music, which goes against the purpose of copyright law as outlined in the Constitution. 

The Substantial Similarity Test

It is the general rule that to prove copyright infringement the plaintiff has to prove access to the work and substantial similarity between the plaintiff’s and defendant’s works.  But what really has to be proven is substantial similarity of copyrightable elements – not unprotectible ideas.  In this case, there was no denying that Ed Sheeran had access to, and knew about “Let’s Get It On,” but the only real similarities were the chord progressions and “groove,” non-copyrightable elements.  It would have been different if there were substantial similarities between the melody or lyrics of the two songs but that proved not to be the case. Moreover, Sheeran’s team presented evidence of “prior art,” meaning many of the similarities, such as the chord progressions appeared in songs that predate “Let’s Get It On” and also occur in other non-infringing songs.

What Can We Learn from This Case?

While there were some noticeable similarities between “Thinking Out Loud” and “Let’s Get It On,” they consisted of non-copyrightable elements and were insufficient to constitute copyright infringement.  As the senior author discussed when interviewed about the verdict, this case highlights the importance of distinguishing between protectable and unprotectable elements in music and the need to promote creativity and innovation in the arts.  Ultimately, this decision reinforces the principle that not all copying constitutes infringement and that basic building blocks of music, such as chord progressions, should remain available for all creators to use and build upon without fear of legal repercussions.

Conclusion

It is important for musicians to be aware of the complexities of copyright law and the nuances involved in determining infringement.  If you find yourself facing potential legal issues or have concerns about your own creative works, one of our experienced intellectual property attorneys can help you understand your rights and obligations as a creator.

Photo by Gabriel Gurrola on Unsplash
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