By Hayleigh Bosher, Reader in Intellectual Property Law and Associate Dean, Brunel University London, UK
Ed Sheeran has successfully defended a US music copyright infringement case, which claimed that his song Thinking Out Loud copied Let’s Get It On, a song co-written and performed by Marvin Gaye.
As we approach the 10-year anniversary of the filing of the Blurred Lines case, the impact of the decision is still being felt across the music industry. In August 2013, Robin Thicke and Pharrell Williams filed an application for a declaration of non-infringement, after the Marvin Gaye Estate claimed that Blurred Lines had copied Marvin Gaye’s Got To Give It Up.
After a trial and two days of deliberation, the jury found that Thicke and Williams were liable for copyright infringement and granted the Gaye Estate the largest award of damages in music copyright history at that point: USD7.3 million. In March 2018, the US Court of Appeals upheld the verdict but reduced the damages award to USD 5.3 million, plus a 50 percent interest in any future royalties from the song.
The decision was controversial, not least because it focused on the similarity of the style of the songs. Dissenting, Judge Nguyen warned that the ruling had “improperly allowed the Defendants to copyright a musical style” and Williams feared: “if we lose our freedom to be inspired, we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation.” In an interview for my podcast Whose Song Is It Anyway?, the leading US copyright lawyer William Patry referred to the decision as a “stain on the federal judiciary.”
If we lose our freedom to be inspired, we’re going to look up one day and the entertainment industry as we know it will be frozen in litigation.Pharrell Williams
Williams’ fear became a reality for many songwriters, including Mark Ronson and Bruno Mars, Drake, Olivia Rodrigo, Dua Lipa, and Justin Bieber to name a few. (You can find a playlist of songs involved in copyright issues called Copyright in the Music Industry on Spotify and Apple Music.)
Ed Sheeran was involved in several disputes, in both the US and the UK. In 2016, he settled a dispute for GBP16 million, alongside co-writer Johnny McDaid, when it was claimed that their song Photograph copied Amazing released by X-Factor winner Matt Cardle. In 2018, he settled another claim that a song he co-wrote with Tim McGraw and Faith Hill The Rest of Our Life copied When I Found You by Sean Carey and Beau Golden. In the same year, Sheeran fought back on a UK-based infringement claim that his song Shape of You infringed Sam Chokri’s Oh Why. The previous settlements came back to haunt Sheeran when they were used as similar fact evidence against him in this trial. In 2022, the High Court of England and Wales found that Sheeran had neither deliberately, nor subconsciously copied, and so began the turning of the tide for Sheeran, and potentially the music industry.
Thinking Out Loud was co-written by Ed Sheeran and Amy Wadge in 2015. Let’s Get It On was co-written by Marvin Gaye and Ed Townsend in 1973.
Kathryn Townsend Griffin, the daughter of Ed Townsend, inherited a third of Townsend’s share of the musical work when he died in 2003. She also inherited the shares of her half-brother David when he died in 2005. This case was brought by Kathryn Townsend Griffin, Ed Townsend’s sister, Helen Mcdonald, and The Estate of Townsend’s wife Cherrigale Townsend in July 2017, against Ed Sheeran and Amy Wadge (Griffin et al v Sheeran et al ). Additional cases were filed over the same songs by Structured Asset Sales, a company owned by investment banker David Pullman that is a beneficial owner of one-third of the copyright in the Townsend catalogue.
After a denial of summary judgment, the Griffin v Sheeran case proceeded to trial in April 2023 in a US Federal Court in Manhattan. It took six years of litigation, six days of trial and three hours of jury deliberations for a decision to be made.
Copyright […] must strike the right balance between protecting against copying and allowing creators to build upon and take inspiration from previous works.
Copyright is supposed to protect and reward eligible original works to promote creativity. To do this, it must strike the right balance between protecting against copying and allowing creators to build upon and take inspiration from previous works. Copyright is the regulation of copying of original elements, not the regulation of inspiration or copying of unoriginal elements. The crux of this case was that parts of the two songs are similar, but those parts are the unprotected elements that are freely available for everyone to use.
The crux of this case was that parts of the two songs are similar, but those parts are the unprotected elements that are freely available for everyone to use.
But should it take this long and this many experts to decide if copying has taken place, or has Blurred Lines led us, and the music industry, astray from copyright principles?
Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff's work and, as a result of the copying there is a substantial similarity between the defendant's work and the protectible elements of the plaintiff’s work. Where a work has both protectible and unprotectible elements, the analysis must involve extracting the unprotectible elements from consideration. The court then only asks whether the protectible elements, standing alone, are substantially similar.
In the present case, as has become the norm in these circumstances, both parties submitted expert musicologist reports. Alexander Stewart’s report on behalf of the plaintiffs (the Griffin parties) concluded that Thinking Out Loud had copied from Let’s Get It On, stating that similarities included the bass melody, drum parts, and harmonies, the structural placement in the overall form and slight shift in setting over the four-chord groove.
On the other hand, Lawrence Ferrara provided a contradictory report on behalf of Sheeran, stating that the songs do not share any significant structural, harmonic, rhythmic, melodic, or lyrical similarities. And that any similarities between the two songs represented expression that was common prior to the creation of Let’s Get It On. Sheeran’s argument was therefore that the songs are not substantially similar because the similar elements are commonplace and therefore not protected by copyright.
At trial, the parties disputed whether the chord progression used in Let’s Get It On was commonplace. Townsend conceded that Sheeran's expert identified at least thirteen songs that predate Let’s Get It On and use the same chord progression, and that it appears in at least two guitar textbooks. The parties also disputed whether the harmonic rhythm of that four-chord progression - the second and fourth chords being anticipated, or placed ahead of the beat - was protectable. Sheeran said it is a commonplace technique, Townsend argued it is distinctive.
As the trial concluded, the judge reiterated to the jury that independent creation is a complete defence to copyright infringement, no matter how similar two songs are. The jury reached its decision after less than three hours of deliberation. They found that Sheeran’s Thinking Out Loud had been created independently and therefore did not infringe the copyright of Let’s Get It On.
On May 16, 2023, US District Judge Louis Stanton followed the same decision, dismissing a second case brought by Structured Asset Sales relating to the same songs but based on their copyright share. Judge Stanton found that the parts of Let's Get It On that Sheeran was accused of infringing were commonplace elements and therefore not eligible for copyright protection. He emphasised that chord progressions and harmonic rhythms are common building blocks of musical creation.
However, this is not the end of the story for Sheeran or the increasing trend of music copyright infringement cases. Townsend filed a notice of appeal on June 1, 2023. The notice did not state the grounds for the appeal and so we will have to watch this space for further details.
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