Amid a UK legal wrangle over copyright to chart-topping Shape of You, Ed Sheeran, is accused in the US of copying Marvin Gaye’s Let’s Get It On in his song Thinking Out Loud. Intellectual property lawyer Dr Hayleigh Bosher unpicks what’s it’s all about…
There are two on-going cases relating to Let’s Get It On and Thinking Out Loud, before New York judge Louis Stanton. Yet neither case is brought by the Gaye Estate. Recorded by Marvin Gaye, Let’s Get It On was written by Ed Townsend who owned two thirds of the song’s royalties when he died in 2003.
The first is between Structured Asset Sales (SAS) and Sheeran, his co-writer Amy Wadge and their record labels. SAS is a beneficial owner of one-third of rights of Townsend in all of his catalogue of works, including Let’s Get It On.
The second case is brought by Townsend’s biological daughter Kathryn Townsend Griffin and Townsend’s estate. The latest judgement on this case came on Friday.
Townsend filed a complaint for copyright infringement in June 2018 when Sheeran denied copying and applied for a Summary Judgement to dismiss the case on the grounds that:
1) the scope of the copyright protection is limited to the sheet music as deposited;
2) the songs are not substantially similar;
3) any alleged similarities are not protected as commonplace elements;
4) that Kathryn lacked the standing to bring the case since she was adopted by other parents.
1) The scope of copyright protection
To back her application for copyright infringement, Townsend submitted the sheet music for Let’s Get It On. Sheeran argued that it is that, rather than the sound recording that defines the scope of protection, since its use in court is to identify the work in which copyright is claimed.
Both parties agreed that the sheet music copy includes the composition’s key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure. But Townsend argued that the composition is embodied on the Gaye recording.
This is important because, as the court noted, hearing the percussion and bass increases the perception of similarity between the works. The court left this question open.
2) Are the songs substantially similar?
Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied their work; and that the copying is a substantially similar.
The test for this is whether an ordinary observer would recognise the alleged copy as having been lifted from the copyrighted work. However, when a work has both protectable and unprotectable elements, it needs more scrutiny to separate out the unprotectable elements. The Court then only asks whether the protectable elements, standing alone, are substantially similar.
Both parties submitted musicologist’s reports and agreed to some similarities between the songs such as the I – iii – IV-V harmonic progression, harmonic rhythm with anticipated second and fourth chords, melody, base, and percussion. Both sides disagreed on whether the vocal melody, harmonic rhythm, harmony, bass-line and percussion were similar. There is no claim of similarities between the lyrics or song structures.
The Judge said the key, tempo, meter and genre of the two songs are similar, but are unprotectable. Sheeran pointed to other elements – structure, lyrics and tone – to highlight the difference in ‘total concept and feel’; saying that Thinking Out Loud has sombre, melancholic tones, about long-lasting romantic love, whereas Let’s Get It On is a ‘sexual anthem that radiates positive emotions and encourages the listener to get it on.’
The judge held that a jury should decide whether Thinking Out Loud is substantially similar to Let’s Get It On.
3) Is it infringement or are the parts taken commonplace?
Sheeran argues that the similarities between the songs are not protected as commonplace elements. The parties dispute whether the basic I – iii-IV- V chord progression used in Let’s Get It On is commonplace, or was commonplace before the song.
Both sides agree on some points – both the musicology reports say that parts of the songs are the same. But Sheeran says that the parts that are the same are not parts that can be protected by copyright. So even though some parts of the songs are the same, it isn’t copyright infringement, according to Sheeran.
They also both agree that 13 other songs have the same chord progression. But Townsend say that most of these songs were created after Let’s Get It On so could have been copied.
There’s disagreement too on whether the harmonic rhythm of that four-chord progression – the second and fourth chords being ‘anticipated’ or placed ahead of the beat – is protectable. Sheeran says it’s a standard technique, Townsend says its distinctive.
4) Does the plaintiff have standing?
Sheeran argued that Kathryn Townsend Griffin lacked standing to bring the case because she was adopted by other parents. But the judge followed the decision of the Superior Court of California which previously ordered that Kathryn was an intestate heir of Townsend and so entitled to 30% of the royalties from his music.
The judge called for a jury trial for rather than a summary judgement (one without a jury trial) as is frequently the case in the US where substantial similarity is a fact issue.
A jury may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between the two songs. However, a jury could find several similarities between the two songs and therefore find Sheeran to be infringing.
The case is very similar to another that the Gaye family bought against Robin Thicke and Pharrell Williams, where they succeeded in claiming Blurred Lines copied Got To Give It Up. As a result, the Gaye family received a pay out of $5 Million and 50% of future royalties. So, if Sheeran loses he could be face the same level of damages.