January 8, 2019 Musicology 2 Comments

Any day seems like a good day to sue Ed Sheeran anymore.

This is a retread of my post from two years ago when I first heard that Ed Sheeran was being sued, not altogether unexpectedly, because Thinking Out Loud sounds a bit like Let’s Get It On. Sheeran was sued twice that summer; the other because his hit Photograph sounded too much like a song called Amazing by Matt Cardle. I wrote an article on that one too, and my opinion was that Ed Sheeran DID indeed steal “Photograph,” (innocently though, I suspect). And Sheeran did settle that one, wisely I think.

This time it looks like Sheeran is willing to go to court. And in my opinion, he should fight it right to the end.

This action was not brought by Marvin Gaye’s heirs, who famously won a $7.4M judgement against Robin Thicke and Pharell for jacking mega-hit, “Blurred Lines,” from Gaye’s “Got To Give It Up” but instead from the family and heirs of Ed Townsend who co-wrote Gaye’s 1973 #1 hit song, “Let’s Get It On.”

Like Blurred Lines, Sheeran’s “Thinking Out Loud” is an enormous target — a monster hit that won “Song of the Year” at the 2016 Grammy’s. So you probably know both of these tracks already, but just in case…

So…

It’s certainly not as though anyone is stunned to hear there’s a lawsuit. The similarity between the two famous songs was quickly noticed after “Thinking” was released. And someone created this mashup showing, pretty nicely that Let’s Get It On” and “Thinking Out Loud” can be played right over top of one another, for what it’s worth.

And as if that’s not bad enough, how about this next video? At around 4 min and 30 seconds Sheeran himself breaks into a chorus of “Let’s Get It On” over his “Thinking Out Loud” chords.

You ask, “why would he willingly invite trouble? Isn’t that stupid? Or is he just that smug?”

It plays that way under the circumstances, I’ll grant. And wow, EVERY SINGLE article I read about this case mentions this video and how it “bolsters the plaintiff’s case” and how it’s “sure to impress the jury.” Sure, it might. I don’t doubt that it’s a big part of the courtroom strategy. But it shouldn’t impress anyone! And the jury can be shown why.

One thing the Blurred Lines case taught us is that even when you’re sure you haven’t done anything wrong, you might not want to preemptively invite the question. Don’t be dancing a funky chicken on the very line in the sand you’re so sure you didn’t cross. Thicke shouldn’t have brandished the fact that he admired “Got To Give It Up,” and wanted to write something “like it.”

And Sheeran shouldn’t have segued into “Let’s Get It On,” but it was funny.   And he was justifiably if perhaps unadvisedly comfortable that despite the obvious similarities, he didn’t steal anything that Gaye and Townsend really own in “Let’s Get It On.” Not everything in music is protected by copyright. And that’s what this case is going to come down to.

Let’s explore the difference between similarity and significant similarity.

Similarity is just that; identifiable similarity that might be big or small, but is there.  “Significant similarity” is a more legally useful term where the “significance” part lies in that the similarity is of the sort that perhaps violates copyright law. Not all similarities do.

So what is the similarity here, and is it significant?

The similarity is a series of four chords that simply repeats over and over throughout both songs.  Go back and listen, just the first ten seconds or so of each. What do we hear? Of course we hear Gaye and Sheeran singing their melodies. Ignore that for now and pay attention to the accompaniment. The accompaniment has a few elements. First, there’s the chord progression,  simultaneous notes in harmony, played in rhythm on tonal instruments; guitars mostly. And along with that you might hear some non-tonal percussion instruments. These combine to make what we call a “groove;” kinda like the engine of the song, propelling the music. The groove is what you dance or just nod your head to. This is important (and the melody isn’t yet) so let’s get into the groove and the harmony and rhythm that make it musical. Then we’ll understand this similarity on a technical level.

Just the Chords Themselves

The eight beats long groove is simply four different chords for about two beats each, and this repeats over and over. (Actually Sheehan’s first four bars has an extra chord at the very very end. Ignore that. It’s an ornament, a guitar-ish embellishment. It’s pretty irrelevant.)

Here comes a little bit of music theory.

A musical theorist would refer to these four chords, in order, as “one, three, four and five,” and might write them as roman numerals, “I, iii, IV, and V.” The “iii” is lower case because it’s a minor chord whereas the others are major chords. By the way, these number are analogous to “Do, Mi, Fa and Sol.” (from “do, a deer a female deer”) the first, third, fourth, and fifth notes of a major scale (“Re” would’ve been two, or “ii.” Get it? Now for the rest of your life when musicians talk in numbers, you’ll have an idea what they’re talking about.)

I – iii – IV – V is a very familiar sound.

Here’s just the four chords, I-iii-IV-V, two beats each, played by me on a piano. Maybe if you try, you can imagine a melody that would go along with it.

Let’s add a rhythm component

I’ll add a bass guitar and drums to the piano part. The bass plays right along with the piano on the same beats. And drums are provided by music software playing a typical R&B (Rhythm and Blues) preset drum part.

That’s a groove, and it’s rather close but not exactly the same rhythm used in the two tracks. As I said before, the four chords are “about two beats each” and here in the example above, I played them “straight,” exactly two beats each.

This next part isn’t nothing. In both “Let’s Get It On” and “Thinking Out Loud,” the four chords aren’t so uniform in length, every other chord is “anticipated.” They actually land on beat one, and on the “and of two.” If you count in your head, “ONE and TWO and THREE and FOUR and” as the music goes by, the chords will land on the that first beat, “one,” and then in between two and three, when you think “and.” Perhaps you’ve heard of downbeats and upbeats? The full numbers are the downbeats and the “and’s” are upbeats. Usually, downbeats are the stronger and more emphasized beats.  When “upbeats” are emphasized to some degree, like the way you accent a syllable, we call that “syncopation.” So let’s hear that, the second and last chords of our four chords need to be played a little earlier.

I’ll change them one at a time for you, so you can hear the change more easily. Here’s the first three chords the same as before, but then the fourth one will arrive a little earlier than in the last example.

And now we’ll move the second chord (iii) as well. That sounds like this…

Does that sound like anything to you? Maybe something that’s not “Let’s Get It On” or “Thinking Out Loud?” It’s kinda basic, right?

Or maybe you just hear “Let’s Get It On” and “Thinking Out Loud.” They can both be sung over just that 6 seconds of accompaniment repeating over and over. Keep that thought.

At this point, you should probably pat yourself on the back. You have essentially just made it through at least a day of a collegiate “Music Theory 101” class, a course in which you’d spend the whole semester learning the essential building blocks of music, the devices, rules, conventions, and systems that are essential to the whole aesthetic of western music, developed from before the time of Bach and still evolving.

Nobody owns nor copyrights these basic building blocks any more than an architect like Frank Gehry would ever copyright marble slabs, or even sculpted sheet metal, although he’s certainly particularly known for that. We understand that architecture will often have common beginnings, like a foundation, and will involve common materials that are aesthetically pleasing and functional. Music is similar. The intellectual property begins on a level beyond those common structures and basic materials that hold together songs, and buildings.

To illustrate, let’s see what else we can do with this same sort of musical building block. If you listened to that mashup above all the way through, you might see this one coming.

Next I’ll just slow the four chords down a little and we get…

Transpose down a key, but still the same I-iii-IV-V and we get…

Slowing the tempo further, but still using the same chords in the same proportions, and then we have…

This is not a slam dunk argument, merely a good one. None of these are on the nose copies of the Let’s Get It On groove. Sheeran’s song is a better match. But of something protectable? No. This is rudimentary building block type material — a basis, obviously, for lots of other music. And I could probably do this all day. I’ll just sit and think of a few more…

  1. I Won’t Last A Day Without You, Carpenters
  2. Turn Around. (Where are you going my little one?), I don’t know who wrote it. I remember learning this song on guitar when I was six.
  3. Captain Candy, Anthony Newley. You don’t know this one. I’m brainstorming here. This played in my house growing up all the time. My dad had a bunch of Anthony Newley albums. Newley co-wrote all the music from Willy Wonka — “The Candy Man” and such. I might be the only person alive who knows this Captain Candy song. But it’s a real thing and it’s these four chords.
  4. Perhaps Love, John Denver, that duet he did with Placido Domingo. It was a top 20 hit 30 years ago.

All written over our I – iii – IV – V chord progression.

They don’t repeat the same four chords 100x in a row the way “Let’s” and “Thinking” do but they used the progression prominently, more than enough to prove the point. And that point is that you can’t copyright the use of that common progression once, twice, nor 75 times in a row. It isn’t in itself a unique nor substantial enough musical work to be owned by anyone. It’s public domain. It’s no more than a framework.

There are only 12 notes.

We sometimes hear it argued, usually in defense of not-very-unique melodies, that there are only 12 notes. That’s true. But the possibilities for unique chord progressions are far more confining. Sure, there are more chords than notes, there are hundreds of chords, but only a tiny fraction of them are really available to the pop music composer at any given time. I’m not out on a limb if I say there are no more than six chords readily available to most pop composers most of the time. Both “Thinking” and “Let’s” are covered by just six different chords each.

The complaint tries to get around this in part by saying that Thinking Out Loud takes the “heart” of Let’s Get It On. They’re “begging the question” in at least a couple of ways. They presume firstly that the groove is somehow the definitive “heart” of “Let’s Get It On.” And if allowed to make this giant leap, they’ve gone a long way toward implying that the rest of both “Let’s” and “Thinking” are somewhat less important. They’d like you to follow the logic that the “heart” isn’t merely a component, but that it significantly steered the creation of  both songs, leading to the argument that “Thinking Out Loud” wouldn’t and couldn’t have been written at all if not for “Let’s.”

Smart of them. Copyright infringement is binary, you either infringe or you don’t. But the larger “Let’s Get It On” looms in the success of “Thinking Out Loud,” the greater the share of Sheeran’s profits they would be awarded.

But none of this is reasonable. Again…

  • brief generic musical thought
  • not unique to “Let’s Get It On”
  • present in lots of other songs

So, first, I’m saying they don’t own it.

But that’s not all by a long shot.

Second, if these tunes have a “heart”, that groove ain’t it. For comparison, let’s consider the supposedly less “hearty” features of these two songs.

The melodies of “Thinking Out Loud” are craftily composed and serve the lyric deftly. Each musical thought leads logically to the next, creating an ebb and flow, and directing the storytelling and emotional arcs of the song. The lyric and melody comprise a substantial and competent work that could likely be supported by several other chord progressions in the accompaniment, and still have been hit.

Here’s a recording of both of the two verses from “Thinking Out Loud” played over top of each other simultaneously. What I want you to notice is that I can layer the two performances, play them back together, and it sounds pretty good. I can do this because the shape is the essentially the same from one verse to the next. This melody has integrity. I’m not talking about moral integrity but structural integrity. The two verses aren’t 100% identical, and any performer of the song might make little modifications, improvisations, or ornamentations around this melody just to add interest, make it her own, Tony Bennett the hell out of it if desired, but the melody would maintain its musical meaning, its essential arc. It has substance.

And here we find the same integrity in the choruses. This is a stack of all three choruses from “Thinking Out Loud” with its “We found love right where we are” tag.

Again we find a deliberate, complete and very substantial melodic work. “Thinking Out Loud” is neither dominated nor significantly defined by the groove it shares with “Let’s Get It On.” In fact, I could install a different groove, an even more common one, and the song would remain intact and be hardly affected. The accompaniment is not its “heart.” The track’s value is mostly held in the wealth of material in these examples — catchy, clever, appealing, singable by a six year old after a couple of hearings, and completely composed by Ed Sheehan.

Of supreme importance, “Thinking Out Loud’s” melody and lyric contains nothing of consequence in common with “Let’s Get It On.” So it’s weird to be arguing substantial musical similarity at all. In prior musicology analysis I’ve talked about “how many notes in a row are common to both tunes,” and that sort of thing. Common notes in melodies are usually the primary cause for a complaint. Unbelievably here the plaintiffs might never even mention melody or notes. Imagine, they are going to argue pop song infringement while perhaps avoiding any discussion of melodies and lyrics since both are, if anything, exceptionally unalike.

I do predict they’ll take up time with a few pointless arguments. Musicologists get paid to notice things like, “both songs leave a few beats of space between phrases in the lyric.” Or “both songs have the same ‘Verse Verse Chorus Verse Bridge Chorus’ structure.” Never mind that half the songs in the history of pop music do both of those as well. They’ve got to make a showing with a few observations that even if not significant, are at least true.

Does Let’s Get It On have a better heart?

‘Let’s Get It On” is an iconic track that reached #1 on the Billboard Top 100. On paper it’s mostly a framework. It has a structure, but it’s a loose one. And it has melodies that have become familiar over time because it was a monster hit, but its melodies are rather meandering and fluid. Most of us can precisely sing that first line, “I’ve been really trying, Baby…” and we can join the chorus at “Let’s get in on,” and only if you know and love the song, you might add “We’re all sensitive people…”  But much of it is an ethereal, stylized and improvisational sounding performance. These are among its charms but they happen to have nothing in common with “Thinking.”

“Let’s Get It On,” wasn’t defined by that groove anymore than “Thinking Out Loud” is. The groove fits the track and the track became iconic, but it’s not the driving force, not even close.

Ask yourself where Let’s Get It On and its groove would be without that warbly funk guitar throughout? Does anybody really think the studio musicians were in this session thinking, “Wow, I’ve never heard this awesome groove before; this is amazing.” “Who even needs Marvin singing about sex? We’re done here. Just put this groove out.” No, it needed Marvin to sing about sex. It was very little without that. That’s probably the “heart” of that tune.

Am I saying “Thinking Out Loud” is a novel, unique track, unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs lots of pleasing and clever but not unique “devices”  including it’s these chords and rhythms that Let’s Get It On shares with it. The songs are copyrightable, but not every component within the songs can be. Building blocks like we’re describing are the musical and lyrical stuff from which “hooks” are made and from which we get hit records. It’s arguably what we look for most in pop music, the foundational elements, then with a bit of a unique twist.

This is not what copyright seeks to do. This is not what it seeks to protect. Unless we want to kill popular music altogether, we should be throwing cases like this out.

Written by Brian McBrearty