Any day is a good day to sue Ed Sheeran.
[ UPDATE: (Oct ’22) This article was mostly written in 2019. I’ve written others with more tedious granularity since, but this is still a decent summary.]
Sheeran has been sued twice in this, the summer of 2019; 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 analyzed that one too, and it was my opinion that Ed Sheeran probably did infringe with “Photograph” and he should settle it. And Sheeran did.
Today we’re looking at the fact that “Thinking Out Loud” sounds a bit like Marvin Gaye’s 1973 #1 hit “Let’s Get It On,” and it appears that Sheeran is willing to go to trial on this one. I’ll be agreeing with him here, and I think I’ll have a lot of company. But above all, we’ll try to consider both sides of it. That’s what we do here.
By the way, Sheeran is not being sued by Marvin Gaye’s heirs, who famously won what was in my view a wretched $7.4M judgment against Robin Thicke and Pharell for their supposedly having jacked “Blurred Lines,” from Gaye’s “Got To Give It Up.” For now, Sheeran is being sued by other rightsholders like the family and heirs of Ed Townsend, who co-wrote “Let’s Get It On” with Marvin Gaye.
Like “Blurred Lines,” Sheeran’s “Thinking Out Loud” is an enormous target — a monster hit that won “Song of the Year” at the 2016 Grammys. 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 noticed shortly after “Thinking” was released. This next video does a mashup layering the two and shows that “Let’s Get It On” and “Thinking Out Loud” can be played right over the top of one another fairly elegantly.
And as if that’s not bad enough, at around 4 min and 30 seconds through this next video, Sheeran seques into a chorus of “Let’s Get It On” at the end of his “Thinking Out Loud” performance!
Even if you’re convinced that you haven’t done anything wrong, you might not want to invite trouble like that. 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 this Sheeran video that “bolsters the plaintiff’s case” and is “sure to impress the jury.” Hard to argue.
But like Robin Thicke, Sheeran is justifiably, if perhaps unadvisedly, comfortable that despite the similarities, he didn’t copy anything that Gaye or Townsend really owns in “Let’s Get It On.” Not everything in music is protected by copyright. And from a musicology standpoint, that’s what this case should come down to, the lack of “unlawful appropriation.”
Okay Mr. Musicologist, what is the similarity here, and why is it insignificant?
The primary similarity is a series of four chords that repeat over and over throughout “Let’s Get It On” and the harmonic rhythm with which it does it. It’s a good portion of the groove. Go back and listen to just the first ten seconds or so of each. What do you hear? Ignore Gaye and Sheeran singing their melodies. Pay attention only to the accompaniment and try to focus on these few elements. First, there’s the chord progression, the simultaneous notes that form harmony, played in rhythm on tonal instruments; guitars mostly, and along with that, 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 to or just nod your head along with. This will be the crux of the case. Let’s dig into this groove, and the harmony and rhythm that make it, well, “groovy.” Then we’ll understand this similarity on a more technical level so we can form and consider musical arguments.
Just the Chords Themselves
The two bars (8-beats) long groove contains a series of four different chords for about two beats each, and this repeats over and over. (Actually, Sheehan’s first four bars contain an extra figure at the very very end. But ignore that. It’s an ornament, a guitar-ish embellishment. It’s not super relevant.)
Now comes a little bit of basic music theory. You can handle it.
A music theorist would refer to these four different chords, in order of appearance, as “one, three, four, and five,” and might represent them as roman numerals, “I, iii, IV, and V.” The ‘iii’ is shown as lowercase 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.)
Sheeran’s second chord is a little different than Gaye’s, and that’s gonna be a whole thing, but for now, let’s pretend they’re identical.
I – iii – IV – V is a familiar sound.
Here are 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.
Now, those chords with the relevant harmonic rhythm.
In both “Let’s Get It On” and “Thinking Out Loud,” the four chords aren’t so uniform in length as I just played them. Instead, every other chord is, as a musician might say, “anticipated.” The first and third chords land on beat one as above, but the second and fourth land 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 more emphasized beats. When “upbeats” are emphasized to some degree, 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 add drums and bass and I’ll add the anticipations one at a time, so you can hear it more easily. Here are the first three chords the same as before, but then the fourth one will arrive a little earlier than the others.
And now I’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 indeed 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 these basic building blocks any more than an architect like Frank Gehry would have a monopolistic claim to marble slabs, or even sculpted sheet metal. We understand that architecture will often have common beginnings, like a foundation, and 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.
I’m taking liberties. That’s not quite how My Girl goes. But it sounds nice, right? What My Girl actually does is MORE like “Thinking Out Loud.” My Girl goes I – I – IV – V. So it spends the whole first four beats on the I chord. But that bassline that we all hum when we hum My Girl? It hits the third degree of the scale on beat three. So that additional I chord is really I/3 which is what Thinking does and what differentiates Thinking’s progression from Let’s’. This matters.
Transpose down a key but still the same I-iii-IV-V and we get…
I took liberties again. Easy’s third chord is “ii,” and not IV. And maybe you heard it, but you hardly noticed, right? Those two chords sound and function similarly and are somewhat interchangable. That’s mostly because the IV and the ii chords are 66.6% identical and even the non-identical notes get along nicely.
Slowing the tempo further, but still using the same chords in the same proportions, and then we have…
In that case, I did preserve the four chords faithfully. Elton just lingers on each for longer. So it’s not the same groove, but it’s the same four chords.
So “I – iii – IV – V” is a familiar sound. None of those are slam dunk arguments or on-the-nose copies of the “Let’s Get It On” groove. Sheeran’s groove is a better match. That’s why we’re here. But is it a match of something someone should have a monopoly on? I certainly hope not. All of these phrases, along with alterations such as syncopation are ever so slightly developed “building blocks,” a basis for lots of other music from our past and I would hope in our future.
This Sam Smith song just occurred to me. He got accused of copying this too coincidentally. This is “I – iii – IV – iv” so only last chord is different, but the first three are the same as “Let’s.”
And I could probably do this all day. I’ll just sit and think of a few more while we’re here…
- I Won’t Last A Day Without You, by the Carpenters, written by Paul Williams.
- 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. Diana Ross recorded it.
- Have I Told You Lately That I Love You, by Van Morrison, Rod Stewart recorded it.
- “Different Drum” The Stone Poneys. It occurs to me, in this one the melody is syncopated but I think the groove is “straight.” And that’s sorta the point of building blocks. Syncopation is just something you can do. You can do it just in the melody, or the whole band can emphasize an upbeat here and there. That’s music-making.
- How about the slow part to Paul McCartney and Wings’ Live and Let Die?
- And “Georgy Girl” which I would have to imagine is going to be the prime example since the rhythm is right too. I can remember, again about six years old, listening to a guy work a big Baldwin organ at the shop where I took piano lessons from a brilliant young Eastman grad named Irene Healy (she was the perfect teacher) and asking my dad, “what’s that song called?”It was Georgy Girl. Amazing, isn’t it, the way music is such a good memory bookmark?
- And she’ll have FUN FUN FUN till her Daddy takes the T-Bird away.
- (added Nov ’22, because I’m thinking about this again) “JEAN!” as in Bonnie Jean. “Jean, Jean, Roses Are Red!:” written by Rod “I have been a rover” McKuen!
- (added later that same day in Nov ’22) “Saturday’s Child” by the Monkees.
All written over our I – iii – IV – V chord progression, which I swear was the thing I would poke at as soon as my family got a piano month as soon as I found it. I thought it was pretty as could be. My parents were sick of hearing it.
(Also added 11/22) I was sitting thinking about the progression today and started humming to myself Dion’s “Has Anybody Here Seen My Old Friend John?” And then I thought, but for the last chord, it goes back to I instead of getting there via the V chord. So it’s I – iii – IV – I, like Puff The Magic Dragon. It’s less about how or when it returns to I that matters so much to the character of all of these songs. To me, it’s more the I to iii on the way to IV. And didn’t Marvin Gaye sing this well before he put out Let’s Get It On? And I’ll say again, is it not just beautiful when he sings “Has anybody here….” That’s I going to iii.
Yes, this song goes I – iii – IV – I but that’s 75% of the chord progression from “Let’s!” He didn’t steal it from Puff The Magic Dragon. It’s just out there. This progression was so much more common in the 70’s when I was a kid. Again, it was what I’d do when I picked up a guitar or sat at the piano. C – Em – F and then either G or back to C. It was more “the thing” to me than was I vi IV V.
These songs don’t repeat the same four chords 100x in a row the way “Let’s” and “Thinking” do, but they use 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 appearing 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 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. “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 doesn’t want to overprotect and take that away.
The complaint argues that “Thinking Out Loud” takes the “heart” of “Let’s Get It On.” This is “begging the question” in at least a couple of ways. They presume that this groove is somehow the definitive “heart” of “Let’s Get It On.” And this would get them a long way toward implying that the balance of both “Let’s” and “Thinking” where nothing else is alike is less important. That “the heart” 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.”
This is perhaps a bit of gamesmanship. Copyright infringement is binary, you either infringe or you don’t. But if it’s determined that you in fact do, then the more “Let’s Get It On” influenced the success of “Thinking Out Loud,” the greater the share of Sheeran’s profits they could be awarded.
But none of this is reasonable in my view, 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
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 lyrics 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 lyrics 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 don’t mean “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 ornamentation 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.
Importantly, “Thinking Out Loud’s” melody contains nothing of consequence in common with “Let’s Get It On.” Common notes in melodies are probably most often the primary good argument for infringement. Here, the plaintiffs might never even mention melody. 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, notably unalike.
Let’s Get It On is lessened by this.
‘Let’s Get It On” is an iconic track that reached #1 on the Billboard Top 100. It’s a lot about framework. It has a structure, but a delightfully loose one. And its melodies have become familiar and memorable, but those melodies are 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 natural sounding performance. These are its charms! And they happen to have nothing in common with “Thinking.”
Is “Thinking Out Loud” a novel, unique track, unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs many pleasing and clever but not unique “devices” including these chords and rhythms that “Let’s Get It On” mostly 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 enjoy and “groove” with immediately. Then with some unique twists and turns.
But protecting “Let’s Get It On” from “Thinking Out Loud?” No. Copyright doesn’t want to stifle creativity the way this would. We should want more songs over decades built in this mold. It’s too fundamental to break over this.