January 8, 2019 Musicology 5 Comments

Any day is a good day to sue Ed Sheeran.

[ UPDATE: (Oct ’22) This case appears headed to trial. Likely in 2022, and likely in NYC. ]

Sheeran has been sued twice in 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 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 time he’s being sued because “Thinking Out Loud” sounds a bit like “Let’s Get It On.” This time though, it looks like Sheeran is willing to go 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 judgment 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 noticed shortly after “Thinking” was released. This mashup layers the two and shows that Let’s Get It On” and “Thinking Out Loud” can be played right over the 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 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 that Sheeran video and says it “bolsters the plaintiff’s case” and it’s “sure to impress the jury.” It sure is. 

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 owned 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 Musicologist, 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 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. It 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. This will be the crux of the case. 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 two bars or 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 do contain an extra figure 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. You can handle it.

A music 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.) 

Let’s ignore for now that Sheeran’s second chord is a little different than Gaye’s. It’s arguably not “iii.” But let’s just say they’re identical for now.

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.

Next consider that in both “Let’s Get It On” and “Thinking Out Loud,” the four chords aren’t quite uniform in length; every other chord is, as 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 add drums and bass and I’ll add the anticipations one at a time, so you can hear it more easily. Here’s 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 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 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.

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? Those two chords sound and function almost alike. That’s 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. Diana Ross recorded it.
  3. Have I Told You Lately That I Love You, by Van Morrison, Rod Stewart recorded it?
  4. “Different Drum”  The Stone Poneys.
  5. How about the slow part to Live and Let Die?
  6. 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 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 Eastman grad named Irene Healy (she was the perfect teacher) and asking my dad, “what’s that song called?” Amazing, isn’t it, the way music is such a good memory bookmark?
  7. And she’ll have FUN FUN FUN till her Daddy takes the T-Bird away.
  8. (added Nov ’22, because I’m thinking about this again) “JEAN!” as in bonnie Jean. “Jean, Jean, Roses Are Red!:” Rod “I have been a rover” McKuen!
  9. (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 it goes back to I and not to V after the IV chord. Still… it’s not how or when it returns to I that matters so much to the character of this, it’s the I to iii on the way to IV. Googled the song, and who comes up singing it? Not Dion, but Marvin Gaye, well before he put out Let’s Get It On. Again, this song goes I – iii – IV – I, like Puff The Magic Dragon does. But still… where does Gaye get 75% of his progression? From everywhere! It’s everywhere when he makes Let’s. 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 declares 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.”

Smart. Yeah, that’s a way to play it. Copyright infringement is binary, you either infringe or you don’t. And once it’s 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

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’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.

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 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 its charms! And they happen to have nothing in common with “Thinking.”

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 many 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. 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