Ed Sheeran has an active lawsuit for the second time this summer alone. It’s only been a few weeks since Musicologize insisted here that Ed Sheeran indeed DID steal his hit “Photograph,” (consciously or unconsciously) and is almost certainly gonna be paying the writers of Matt Cardle’s hit “Amazing” a lot of money.

This brand new complaint, just filed in the U.S. District Court of the Southern District of New York, says Mr. Sheeran plagiarized Marvin Gaye’s 1973 #1 hit song, “Let’s Get It On,” to write a #2 hit song, “Thinking Out Loud,” the “Song of the Year” at the 2016 Grammy Awards.

Surprisingly, the heirs and family of Marvin Gaye who last year won a $7.4M judgement against Robin Thicke and Pharell for jacking, “Blurred Lines,” a bigger hit than any of these, from Gaye’s “Got To Give It Up,” are not the plaintiffs here. Instead the plaintiffs here are the family and heirs of Gaye’s co-writer of “Let’s Get It On,” Ed Townsend.

This time Ed didn’t do anything wrong. This suit is ridiculous. And I’ll show you why.

First let’s give the plaintiff’s case its due. The two songs are indeed similar. This was noticed right away when “Thinking” was released, and there’s quite a bit written on the topic. Someone even created this mashup showing very nicely that Let’s Get It On” and “Thinking Out Loud” can be played right over top of one another.

So… are you already thinking Sheeran is guilty? Plenty of people would be. Perfectly understandable. Strong similarities are what good mashups exploit. DJ’s have been blending songs this way for decades and modern music software advancements make it so easy and appealing that mashups have become a sort of art form all their own. There are tons of them out there. They don’t all turn into copyright lawsuits however.

How about this…  At around 4:30, Sheeran himself will show you how similar these two tunes are when he breaks into a chorus of “Let’s Get It On.” A headline like, “If a Jury Ever Sees This Video, Ed Sheeran Loses His Shirt to Marvin Gaye,” typically accompanies such a video.

Smug little superstar, ain’t he?

No. Sheeran just knows what we’re about to prove — that despite the obvious similarities, Sheeran didn’t steal anything that Gaye and Townsend really owns in “Let’s Get It On.” What does that mean? I’ll lay it all out for you.

First let’s understand what the real similarity is, technically. The feature shared between the two songs is a series of four chords, that simply repeats over and over throughout both of these songs.  And I’ll show you what that sounds like in a moment but first, “Chords” are groups of three or four notes sounded together. When notes are sounded together we call the distance between the notes, “intervals,” and the sound they make together is “harmony.” We call a series of chords a “chord progression.” These two songs have the same “chord progression” running nearly throughout.

Their shared chord progression is “two measures long in 4/4 time.” We divide music into little time packets called “measures.” It’s what enables us to count beats as “one and two and three and four” and then cycle back to “one” instead of having to count to a thousand. The 4/4 time part means that each measure is four beats long (most common by far) and this progression fills two measures, so eight beats in total. It all takes place in about 6 seconds. And now finally you get to hear it.

Below are the first four measures of each of these tracks. As you listen to the songs you should be able to count, “1, 2, 3, 4, 1, 2, 3, 4…” and so forth. Four measures will show us the chord progression twice.

You can just leave those two snippets repeating if you like, while I describe what we’re hearing. We have groups of notes, making harmonies, played in a certain rhythm. We hear some tonal instruments that play notes along with some non-tonal percussion instruments. These combine to make what we call a “groove.” It’s kinda like the engine of the song. It propels the music. And then lastly we have Marvin Gaye and Ed Sheeran singing words and melodies along with that groove.

Setting the melody and lyrics aside for now, let’s just take a good look at the groove which combines harmony and rhythm. Let’s analyze each of those things.

First, the harmony. The eight beats use 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. Try to ignore that as a guitar embellishment. It’s irrelevant.) I’m going to refer to these four chords in order as “one, three, four and five.” And I’ll spell them in roman numerals, “I, iii, IV, and V.” The “iii” is lower case because it’s a minor chord whereas the others are major chords. These numbers are analogous to “Do, Mi, Fa and Sol.” (where “Re” is notably missing, and would’ve been two, or “ii.” Get it?

So what does I-iii-IV-V sound like? I’m at a piano. Here’s just the four chords, I-iii-IV-V, two beats each.

That’s the harmony component. Now let’s look at the rhythm. I’ll add a rhythm section of bass and drums to the piano part. The bass plays right along with the piano on the same beats. Music software provides the drums and is playing a R&B (Rhythm and Blues) preset drum part.

Okay, now we’ve got a bit of a groove going. This is close, but not exactly the same rhythm used in the two tracks. Remember I said the four chords are “about two beats each?” In the example above, I played them “straight, EXACTLY two beats each, landing on beats one and three.

In both “Let’s Get It On” and “Thinking Out Loud,” the chords actually aren’t so uniform in length. They actually land on beat one, and on the “and of two.” I’ll explain this “and of two” concept. 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 we say “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.  When “upbeats” are emphasized to some degree, we call this “syncopation.” In other words you’ll hear the second and last chord of our four a little bit earlier than the beat, on the “and.”

First we’ll fix only that last chord, the five (V) chord, so you can hear the change more easily. You’ll hear three chords the same as before, but then the fourth one will arrive a little earlier than in the last example.

And then we’ll syncopate them both, the iii and the V. That sounds like this…

That’s the actual progression.We can sing most of both “Let’s Get It On” and “Thinking Out Loud” over just that six seconds of accompaniment repeating over and over.

At this point, you should pat yourself on the back. That was technical and detailed, and if you followed along you have essentially just made it through one day of a collegiate Music Theory 101 class, in which of course you’d learn the essential building blocks of music. And those building blocks — devices, rules, conventions, systems, etc. — would be essential to the whole aesthetic of western music that has developed from before the time of Bach and continues to evolve through to present.

Back to the matter at hand, nobody owns nor copyrights these basic building blocks! No 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…

So you can see that this same chord progression and groove can and has supported lots of other music. I just sat at the piano for ten minutes and came up with a few more familiar songs that fit just as well…

  1. I Won’t Last A Day Without You, Carpenters/Paul Williams (He’s the president of ASCAP. Pretty into the whole IP thing. I should ring him.)
  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. My dad had a bunch of his albums. He wrote all the music from Willy Wonka — “The Candy Man” and such. I might be the only person alive who knows this song. But it exists and it’s a good example.
  4. Perhaps Love, John Denver, that duet he did with Placid Doming, was a big top twenty hit 30 years ago? No? Nothing?

I could probably do this all day. The composers wrote these melodies over this same chord progression. They don’t repeat the same four chords 100 times in a row the way “Let’s” and “Thinking” do, but they used the progression prominently, more than enough to prove the point. You can’t copyright the use of the 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 and that it’s used repeatedly throughout much of a song is irrelevant.

SIDEBAR

We can find substantially similar and even identical chord progressions and/or grooves all across popular music. We often hear it said, 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. It does depend somewhat upon the skill and/or the intent of the composer, but 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. We can cover “Thinking” and “Let’s with just six different chords each.

It’s just as The Who’s Pete Townsend said when recently asked if he might want to sue “One Direction” because their hit “Best Song Ever” was said to sound like one of his biggest hits, “Baba O’Riley.

“The chords I used and the chords they used are the same three chords we’ve all been using in basic pop music since Buddy Holly, Eddie Cochran and Chuck Berry made it clear that fancy chords don’t mean great music.” And then he goes further saying, “I’m still writing songs that sound like ‘Baba O’Riley’ – or I’m trying to!” – Pete Townsend

It so happens that Baba O’Riley itself was a very inspired tune as well. (Composer Terry Riley is pretty much Papa O’Baba.) It also happens that the chord progression in “Baba O’Riley” is I-V-IV and “Best Song Ever’s” is IV-I-V.

But hey, if The Who wants a crack at Sheeran and Gaye both, there’s another song on that same “Who’s Next” album that we could shoehorn in here like so…

What are they trying to accomplish? They’re “begging the question” in at least a couple of ways. They presume firstly that the groove we’ve worked to death is somehow the “heart” of “Let’s Get It On.” 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. And perhaps also that the “heart” isn’t merely included in, but significantly steered the creation of  both songs. That in turn could suggest that “Thinking” wouldn’t and couldn’t have been written at all if not for “Let’s.” All of this then greatly affects potential reward. It’s not all or nothing. The larger “Let’s Get It On” looms in the success of “Thinking Out Loud,” the greater the share of its profits they would be awarded.

Quite a domino effect.  But none of this is reasonable. None.

Again…

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

So, first, they don’t own it. And second, if these tunes have a “heart”, that groove ain’t it. It barely makes the list of vital organs. For comparison, let’s consider the supposedly less “hearty” accomplishments of these two songs.

Sheeran craftily composed the melodies of “Thinking Out Loud” to 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. Alternative accompaniment choices could’ve supported that melody, and “Thinking Out Loud” still be a 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 it’s 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 work, aside from the very common accompaniment it employs. “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 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 here at all. In prior musicology analysis we’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.

Now quickly onto ‘Let’s Get It On,” which, exclusive of its groove, needs no defending. This 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.” No small matter by the way, “Let’s” is the title track of an album referred to as, “one of the most sexually charged albums ever recorded.” No, that groove doesn’t define “Let’s Get It On,” anymore than it does “Thinking Out Loud.” The groove fits the track and the track became iconic, but it’s not the driving force, not even close.

Is anybody going to ask where the track or its groove would be without that warbly funk guitar throughout? Does anybody think the studio musicians were in this session thinking, “Wow, I’ve never heard this 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. Good thing it’s the only track out there doing that.

 

SIDEBAR TWO

Is “Thinking Out Loud” novel, unique and unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs lots of pleasing and clever but not unique “devices” within including the underlying chords and rhythms. That familiarity is unassailable. It’s 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. We look for and make hits of familiarity with a bit of a unique twist. This is why the law itself should not be compromised. Unless we want to kill popular music altogether, we should be throwing cases like this out.

Written by brianmcbrearty