January 8, 2019 Musicology 3 Comments

Any day is a good day to sue Ed Sheeran.

This is an update/retread of my post from two years ago when I first heard that Ed Sheeran was being sued, not unexpectedly, because indeed Thinking Out Loud sounds like Let’s Get It On. Sheeran was sued twice that summer; the other, I’ll go out of my way to mention, was because Sheeran’s hit “Photograph” sounded too much like Matt Cardle’s “Amazing.I wrote an article on that one too, and said Ed Sheeran DID indeed infringe upon “Photograph” and he should settle ASAP. And Sheeran did indeed settle. This is why I mention it.

This time though it looks like Sheeran is willing to go all the way to trial. And this time he should.

By the way, Sheeran is not being sued by Marvin Gaye’s heirs, who famously won an absolutely wretched $7.4M judgement against Robin Thicke and Pharell for their supposed jacking of mega-hit, “Blurred Lines,” from Gaye’s “Got To Give It Up.” For now Sheeran is being sued by other rights holders like the family and heirs of Ed Townsend who co-wrote Gaye’s 1973 #1 hit, “Let’s Get It On.”

Just 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, here they are:

It’s not as though anyone was stunned to hear about a lawsuit. The similarity was quickly noticed after “Thinking” was released. A mashup shows Let’s Get It On” and “Thinking Out Loud” can be played right over top of one another. 

And as if that’s not bad enough, at around 4 min and 30 seconds through this next video, Sheeran breaks into a chorus of “Let’s Get It On” at the end of his “Thinking Out Loud” performance!

Dude.

Even if you’re sure you haven’t done anything wrong, you might not want to invite the question like this. This is like doing a funky chicken dance on the very line in the sand you’re not to cross. Do you not think Robin Thicke regrets brandishing the fact that he admired “Got To Give It Up,” and wanted to write something “like it?”

EVERY SINGLE article I read about this case mentions that Sheeran video and says it bolsters the plaintiff’s case and it’s sure to impress the jury.

But here we go.

Like Robin Thicke, Sheeran is justifiably if perhaps unadvisedly comfortable that despite the similarities, he didn’t copy anything that Gaye or Townsend really owned in “Let’s Get It On.” Not everything in music is protected by copyright. And from a musicologist standpoint, that’s what this case should come down to, the lack of “unlawful appropriation.”

So, musicologically, what is the similarity here, and why is it insignificant?

The similarity is a series of four chords that simply repeats over and over throughout Lets Get It On. Its what some people call a groove. Go back and listen to just the first ten seconds or so of each. What do we hear? Ignore Gaye and Sheeran singing their melodies. Pay attention just to the accompaniment, which has a few elements to appreciate. First, there’s the chord progression, the simultaneous notes that form harmony, played in rhythm on tonal instruments; guitars mostly. And along with that, you might hear some non-tonal percussion instruments. These chords and their rhythms combine to make the “groove;” kinda like the engine of the song, propelling the music. The groove is what you dance or just nod your head along with. Let’s dig into this groove, and the harmony and rhythm that make it musical. Then we’ll understand this similarity on a more technical level so we can form and consider musical arguments.

Just the Chords Themselves

The 8-beats long groove is four different chords for about two beats each, and this repeats over and over. (Actually, Sheehan’s first four bars do contain an extra chord at the very very end. But ignore that. It’s an ornament, a guitar-ish embellishment. It’s pretty irrelevant.)

Now comes a little bit of basic music theory.

A musical theorist would refer to these four different chords, in order, as “one, three, four and five,” and might write them as roman numerals, “I, iii, IV, and V.” The ‘iii’ is shown as lower case because it’s a minor chord whereas the others are major chords. By the way, these numbers are analogous to “Do, Mi, Fa and Sol.” (from “do, a deer, a female deer”) which are 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 if you hear 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. Maybe it will sound like something you know. Maybe several things you know.

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) drum part.

That’s a groove, and it’s kinda close but not exactly the same rhythm used in the two tracks. The four chords are only “about two beats each” while there in the example above, I played them “straight,” exactly two beats each, uniform in length.

But in both “Let’s Get It On” and “Thinking Out Loud,” the four chords aren’t uniform in length; every other chord is, a musician might say, “anticipated.” The first and third chords actually land on beat one, and on other two on the “and of two.” If you count in your head the way musicians do sometimes, “ONE and TWO and THREE and FOUR and” as the music goes by, the chords will land right on the first beat, “one,” and then on the “and” in between two and three, when you’d think “and.”  🙂

Perhaps you’ve heard of “downbeats” and “upbeats?” These are those. The full numbers are the downbeats and the “and’s” are upbeats. Usually, the downbeats are the stronger and more emphasized beats. If you were tapping your foot, you probably wouldn’t tap the “and” beats, only the numbered ones. When “upbeats” are emphasized to some degree, like the way you accent a syllable other than a first one, 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 do 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, probably two days, 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 above and 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.

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

Or close enough. In truth, Easy’s third chord is “ii,” and not IV. But you hardly noticed, right? They sound and function almost alike. Thats mostly because the IV and the ii chords are 66.6% identical and even the non-identical notes play together nicely.

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

So hopefully these illustrations are educational. None of these are slam dunk arguments or on-the-nose copies of the Let’s Get It On groove. Sheeran’s song is a little better match. But is it a match 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 while we’re here…

  1. I Won’t Last A Day Without You, by the Carpenters, written by Paul Williams.
  2. Turn Around. (Where are you going my little one, little one?), I don’t know who wrote it. I remember learning this song on guitar when I was six.
  3. Captain Candy by Anthony Newley. You don’t know this one. It played in my house growing up. My dad had a bunch of Anthony Newley albums. Newley was a beast. He co-wrote all the music from Willy Wonka and The Chocolate Factory — “The Candy Man,” “Pure Imagination,” and such. I might be the only person alive who remembers this Captain Candy song. I’ve never thought about this before but maybe it was cut from Willy Wonka? I gotta look into this.
  4. Perhaps Love by John Denver, that duet he did with Placido Domingo. It was a top 20 hit 30 years ago.
  5. “Different Drum?” I cannot remember who that was, “you and I dance to the beat of a different drum?” Thats the same chords.  Okay just looked it up. The Stone Poneys. I have to admit I was never going to come up with that.
  6. How about the slow part to Live and Let Die?
  7. And of course, “Georgy Girl” which I would have to imagine is going to be the prime example, since the rhythm is right too. I can rememer, again about six, listening to a guy work a big Baldwin organ where I took piano lessons as a kid, and asking my dad, “whats that song called?” 

All written over our I – iii – IV – V chord progression, which I swear was the thing I would poke at as soon as I sat at the piano for at least a month as soon as I found it. I thought it was pretty as could be. My parents were sick of hearing it.

These songs 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 make my 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.

And “there are only 12 notes.”

We sometimes hear it argued, often in defense of not-very-unique melodies, that “there are only 12 notes.” But the possibilities for unique chord progressions are far more confining than that! 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 at all out on a limb if I say there are no more than six chords readily available to most pop composers at a given moment in any song. Both “Thinking” and “Let’s” are covered in their entirety by just six different chords each. Songs NEED to be written over like or similar chord progressions. Copyright doesnt want to overprotect and take that away.

The complaint tries to get around this argument in part by declaring that “Thinking Out Loud” takes the “heart” of “Let’s Get It On.” I would say theyre “begging the question” in at least a couple of ways. They presume first that the groove is somehow the definitive “heart” of “Let’s Get It On.” And sure, if they’re somehow permitted to establish such a giant leap, they’ve gone a long way toward implying that the rest of both “Let’s” and “Thinking” (where similarities will be few if any) are less important. They’d like you to follow their logic that their “heart” isn’t merely a well worn component as I hope I’ve already shown it is, but that it significantly steered the creation of both songs. And that presumption would lead to the argument that “Thinking Out Loud” wouldn’t and couldn’t have been written at all if not for “Let’s.”

Smart. Yeah, that’s a way to play it. Copyright infringement is binary, you either infringe or you don’t. And once its determined that you in fact do, then the more that “Let’s Get It On” influences the success of “Thinking Out Loud,” the greater the share of Sheeran’s profits they would be awarded.

But none of this is reasonable. Because again, this groove is:

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

So, they cannot own it.

But that’s not all by a long shot.

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

The melodies in “Thinking Out Loud” are craftily composed and serve the lyric well. 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 and grooves in the accompaniment and still have been 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 cohesive. I can do this because the shape is essentially the same from one verse to the next. This melody has integrity. I’m not talking about moral integrity, but structural integrity. No, 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”-ize 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 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 Sheeran.

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 often the primary cause for a complaint. Unbelievably here the plaintiffs might never even mention melody or notes. Imagine it. They are possibly going to argue pop song infringement while painstakingly avoiding any discussion of melodies and lyrics since both are, if anything, exceptionally unalike.

I imagine 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.” Those are trifles.

By the way, doesnt “Let’s Get It On” have a truer heart?

‘Let’s Get It On” is an iconic track that reached #1 on the Billboard Top 100. It’s a lot of framework. It has a structure, but a delightfully loose one. And its melodies have become familiar and memorable, but those 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 imagine the studio musicians were in this session thinking, “Okay, so, I’m supposed to play every other chord on the fourth beat? OMG, I’ve never heard such an awesome groove before; this is amazing! Who even needs Marvin singing about sex? We’re done here. Just put this completely original infectious groove out!” No, it needed Marvin to sing about sex in his Marvin way. It was very little without that. That’s probably the “heart” of that tune too, melody and lyrics.

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 these chords and rhythms that “Let’s Get It On” shares with it. The songs are copyrightable, but not every component within the songs is original. 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 that we’re conditioned to and can enjoy and, well, “groove” with immediately. Then with some unique twists and turns. 

But protecting “Let’s Get It On” from “Thinking Out Loud?” That’s overreach. It would discourage creativity were it to be allowed to continue to take hold as we become more and more litigious. This is not what copyright seeks to do. This is not what it seeks to protect. Unless we want to kill popular music altogether,

Written by Brian McBrearty