February 17, 2023 Musicology No Comments

Ed Sheeran’s “Thinking Out Loud” vs Marvin Gaye’s “Let’s Get It On” is too important to get wrong.

Ed Sheeran is being sued because “Thinking Out Loud” sounds in some ways a lot like “Let’s Get It On,” and by all appearances, this is going to trial in April, finally. I first analyzed its main musicological points back in 2019. And I’ve written quite a lot since. As a forensic musicologist, I can analyze the works, explain the contentious points, and form a professional opinion on the matter, and I have. But today, I’m mostly thinking about “what happens if we screw this up?”

Let’s quickly clarify, Sheeran is not being sued, yet at least, by Marvin Gaye’s heirs. These are not the plaintiffs from the “Blurred Lines” trial, but other rights holders. I am still going to talk about “Blurred Lines” a bit because I think it illustrates the gravity of “Thinking Out Loud” vs “Let’s Get It On.”

To anyone who works with music copyright — music creators, music publishers, intellectual property and entertainment attorneys, or forensic musicologists — plagiarism and infringement matters are evaluated on the curve that “Blurred Lines” drew; it has been the reference point for years. And not because it’s any kind of north star, mind you; nobody ascribes any noble direction to it, quite the contrary, but it changed the game. Every plausibly infringing thing that came afterward is measured in comparison to the previously unimaginable implausibility of Blurred Lines’ and its five-million-dollar verdict. And then came Katy Perry’s “Dark Horse,” initially ruled an infringement on Flame’s “Joyful Noise.” That result was eventually overturned, but the shocking initial verdict and the 2.8 million dollars awarded in damages were considered a direct consequence of “Blurred Lines;” and the confirmation of the fears it had installed — compositional similarities previously thought to be inconsequential in terms of copyright were now much more viable foundations of infringement lawsuits.

Last year, Ed Sheeran had just won another case in which his most successful song of all, “Shape Of You,” was found not to infringe on Sam Chokri’s “Oh Why,” and he complained, reasonably I think, that baseless infringement claims had become a bit of a scourge (not a direct quote). He didn’t need to say, “ever since Blurred Lines,” because it goes without saying.

It would’ve been nice if “Blurred” had been dismissable as an aberration and outlier, and I tried, but it wasn’t sufficiently baseless for that. Instead, in a flat earth type of fashion, it manages to provide oxygen to ideas like “Thinking Out Loud vs. Let’s Get It On.”

And should this trial go haywire, it’s going to shake things up even more than Blurred Lines.

The question, of course, is not simply, “Are two works similar,” but rather it’s “was something copied, and was it enough and of the sort that copyright should be concerned with it?” In the case of Blurred Lines and Got To Give It Up, the two works are mostly dissimilar apart from some elements of instrumentation and style, which have always been mostly unprotectable aspects of a musical work. Like tempo and key, orchestration and style are more associated with the performance of the underlying work than the work itself. I should point out that I believe the Marvin Gaye team would argue they won the case on the similarity of compositional elements very traditionally considered protectable, not merely style. The effect is the same regardless. Ninth Circuit Judge Nguyen authored the dissent, which included that the result established “a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.” She was right, but that was small potatoes compared to what’s on the line in “Thinking Out Loud.”

Let’s remind ourselves that the idea of copyright is noble. It seeks to encourage and reward creatives that provide art to an appreciative society, and it seeks a balance between protecting intellectual property rights and allowing future creators to be inspired by past creators. Overreach in either direction is problematic. Judge Nguyen wrote that the Blurred Lines decision “allows the Gayes to accomplish what no one has before copyright a musical style,” and an amicus brief supported by hundreds of prominent musicians agreed that the verdict was “punishing songwriters for creating new music that is inspired by prior works.” Those are two distinct points, but the verdict blurred lines that Judge Nguyen and all those musicians thought they understood; the Judge charging that we had expanded what copyright protects to include the “style” of a work, the amicus brief that we had expanded copying to include merely being inspired.

I wrote at the time that Blurred Lines did neither. I saw it more simply as a persuaded jury delivering a bad verdict that didn’t get overturned. “Bad” is not enough reason to overturn. Juries get things wrong sometimes, and unless something was procedurally screwy, they can remain wrong. The jury was convinced “Got To Give It Up” was copied, too much and in ways that matter. That’s infringement.

I’m less sanguine about “Thinking Out Loud” vs “Let’s Get It On.” This has the potential to do more damage than Blurred Lines. I think it’s unlikely, mind you, but the stakes are high.

I should tell you what is most likely to go wrong in my view.

It’s about perspective, and how it can lead us to silly conclusions if we get too focused on a small argument. I wrote a lot about how those earlier cases were affected by the unreliable “inverse ratio rule;” roughly that if for example we’re super convinced Katy Perry was listening to a lot of Christian radio and heard “Joyful Noise” then we can allow for equivalently less similarity between “Joyful Noise “and Perry’s “Dark Horse” to conclude she copied it. So much was made of whether Katy might’ve heard “Joyful Noise” on Christian radio, as though that were the salient point. No, the point was the musical similarities were better explained as coincidence than copying because they were mundane and minuscule. Since then the inverse ratio rule was somewhat thrown out, which I applauded though arguably it was an overcorrection. There was another screwy concept called “Selection and Arrangement” that was in play in those cases, but might wreak real havoc in this one.

Copyright protects the selection and arrangement of unoriginal elements if selected and arranged in an original way. From a musical perspective I might say that a sound collage is a protectable work even though the sounds were sourced and not created by the artist. A simple example might be a musical work comprised entirely from a single storebought collection of audio samples. Others might also purchase that collection, but the unique way in which one artist selects and arranges those unoriginal elements into their work is itself original. They would then be able to protect that work, but not against everyone who uses the same sounds, only those who might select and arrange them in a way that was too similar. And you would be correct in reasoning that since in my example the collection of sounds was a widely available product, the bar for similarity should be set quite high.

So what of a chord progression that contains just four chords, played in a rhythm that can be expressed in just one measure, repeated to make a two-measure progression? If neither the four chords in that order, nor that one-measure-long rhythm, are at all unique, is it really conceivable that the selection and arrangement of just those two elements might be infringement? Does it matter that by “arrangement” here we really just mean “combined,” since it’s just those chords played in that rhythm? And does it matter that the chords aren’t quite alike, just mostly alike? What about the fact that although there are lots of examples of both those chords and that rhythm in music, there aren’t many where those chords are played in that rhythm?

That’s most of what we’re going to be doing here, discussing that. And that’s fine as an exercise. But for heaven’s sake, don’t screw it up.

Selection and arrangement is valid. That’s a fact. But is this even what selection and arrangement means? No. This is silly. This is four measures, a familiar sequence of four chords played in a simple rhythm — a trivial amount of musical creativity that indeed happens to exist in two works. And since it’s trivial, it’s neither probative of copying nor deserving of protection by copyright. And selection and arrangement is an alternative way to package and present it. It’s Sesame Street-level stuff, rearranging a stack of blocks and explaining to your child that it’s still the same number of blocks.

And it’s a small pile of blocks to boot.

A bad verdict arising here would be a minor catastrophe. I admit, I was somewhat stoic in the face of the post Blurred freakout, but I have been asked too many times the curious question, “Okay, but compared to Blurred Lines, how strong of a case would we have?” A bad verdict here would perhaps blur my lines. And if I should find my future self asked, “how bad of a case do you think we have compared to “Thinking Out Loud?” Well, I supposed I’ll adjust to a new paradigm and be able to answer, but let’s hope it doesn’t come to that.

Written by Brian McBrearty