Ed Sheeran’s Win Shows Building Blocks of Music Cannot be Copyrighted
Crystal Broughan, Intellectual Property Attorney May 4, 2023 in Copyrights
Musical artists have always had to deal with questions of copyright. In recent years, however, many have felt a shiver up their spine from copyright issues that deal with the basic building blocks of music. That encompasses fundamentals like chord progressions, rhythmic profile, and “feel.”
The case that stirred things up was the estate of Marvin Gaye winning an infringement case against Robin Thicke and Pharrell Williams for “Blurred Lines.” It caused many artists to question: “If I use a common chord progression, can I be hit with an infringement lawsuit?”
This week, another case involving Marvin Gaye’s estate and pop singer-songwriter Ed Sheeran did not end in the estate’s favor. The ruling steers copyright opinion back toward protecting artists’ ability to use common building blocks.
The original case, filed in 2017, compared Sheeran’s song “Thinking Out Loud” to Gaye’s “Let’s Get It On.” Gaye’s daughter, Kathryn Griffin Townshend, claimed that the songs overlap too much in chord progressions and rhythmic strumming patterns, implying that Sheeran copied “Let’s Get It On” to write “Thinking Out Loud.”
Townshend brought the case, she believed, in defense of her father’s work.
Sheeran’s reaction over the years has been indignation in defense of his own original songwriting. He argued that the chord palette of pop songs is necessarily quite limited – you are not going to find outlandish jazz extension chords in a pop song. So it makes sense that two hit pop songs might follow similar progressions.
To reinforce his side, Sheeran took to the stand with his guitar to demonstrate how the songs’ chord progressions are not identical.
Music Copyright Limitations
An interesting aspect of this case: because of how the copyrights for these songs differ, the jury listened to them in very different forms. While they had access to Sheeran’s studio recording of “Thinking Out Loud,” Gaye’s song was portrayed through a MIDI interpretation of the sheet music.
That reflects the age of “Let’s Get It On.” At this point, the U.S. Copyright Office only recognizes the copyright submitted for the original sheet music in the 70s, which was minimally notated compared to Gaye’s full studio version. The jury had to make their decision based on how that version of the song compared with Sheeran’s modern composition.
A Lesson in Conversation Over Litigation
It may warm the heart to hear that Sheeran and Townshend shared private words and a hug after the verdict was announced in Sheeran’s favor. Although both felt they were defending original creative works, it seems the two parties did not develop rancor toward each other – and final messages seem to indicate that an understanding was reached. Townshend was quoted as saying, “If we had been able to just talk, we wouldn’t be here today.”
It is a powerful reminder that there exist many steps before IP litigation. You can work with an IP professional early in the process to facilitate dialogue and understanding that may help you forego expensive and possibly contentious trial procedures.Share