Thing 1 and Thing 2, both easily understood.
Gimme three minutes.
Ed Sheeran is headed to court next week to defend against the claim that he copied Marvin Gaye and Ed Townsend’s “Let’s Get It On” when he wrote “Thinking Out Loud.”
My opinion (not one bit iffy on this) is that Sheeran did not copy “Let’s Get It On.” And even the question that many headlines are asking, “At what point does inspiration become infringement?” is well off the mark. They wrongly assume the choice, inspiration or infringement. “Thinking Out Loud” is neither significantly similar nor was it likely even inspired by “Let’s Get It On.” “Let’s Get It On” is much more likely entirely irrelevant to the creation of “Thinking Out Loud.” But I can’t know for sure of course. And leaving for the possibility of cryptomnesia, Sheeran himself may not know for certain either. But even if he was thinking about “Let’s,” the elements in “Let’s” that are shared by “Thinking” are not unique, original or protectable. They are far too little, basic, and common.
Here in the real world, that seems perfectly obvious. The shared element is a chord progression that I learned on the guitar when I was a kindergartener, and I wasn’t learning “Let’s,” but a song called “Turn Around.”
Litigation however is like a parallel universe.
In that universe, the whole case is gonna hang on just two things. The universe started out bigger when the litigation began and gradually got whittled down to just these two things. And you’re gonna understand them both easily.
[ 4/25 Update: In opening statements, “Thing 1” was described by plaintiff’s counsel as a smoking gun and tantamount to a confession.]
In this “Thing 1” video, Sheeran is going to sing “Let’s Get It On” at the end of his performance of “Thinking Out Loud.”
“Thing 1” is what the plaintiffs are most hanging their hopes on. In fact, I think they’re hoping Sheeran is so scared of that video, that he might yet settle on the courthouse steps, sorta Rupert Murdoch-style. When that doesn’t work, the next best value “Thing 1” brings to the party is about creating jury confusion.
Voir dire question: “Potential juror, are you familiar at all with the “Axis of Awesome?”
“Thing 1” may come down to Sheeran’s ability to teach the jury that being able to sing “Let’s Get It On” over the chords to “Thinking Out Loud,” and vice-versa, in concert, just for fun, is not indicative of his having copied anything. It simply shows that when two songs share a common chord progression played to a common rhythm, the melodies of one may be quotable in the other. That “Axis Of Awesome” video shows them singing a long list of familiar songs over the chord progression of Don’t Stop Believin’? Journey sued none of ’em.
Common chord progressions are the basis of many a mashup.
I myself used to quote the Theme from Rocky anytime I played a piano solo over Chick Corea’s classic “Spain.” Not being a jazz purist, it tickled me to no end. And mind you, the section of “Spain,” took about twenty seconds at a brisk tempo, passing through eight chord changes, all of which were exactly what they needed to be for me to put Rocky over it. It’s the same eight harmonic changes in the same order that Bill Conti wrote for Stallone. Nobody sued anybody.
It may not be intuitive to non-musicians, but it’s not an especially rare opportunity. Sheeran will need to teach the jury about it.
[Update, again: And therefore, it’s neither a smoking gun nor a confession.]
That just leaves “Thing 2,” which is whether the similarity (everyone acknowledges there is a similarity) is unique, original, and thus protectable by “Let’s.”
There are different paths to reasoning that out, but prominent among them for the plaintiff is an idea sometimes termed “Selection and Arrangement,” in this case, a combination of an unoriginal chord progression and its unoriginal rhythm, that itself “as a combination” might the plaintiff would posit, be believed to be sufficiently original to enjoy protection by copyright. “Selection and Arrangement” meanwhile is a real thing, a legal truism, but here, musicologically, it’s a stretch. There’s no way to play chords without duration and placement. A combination? Yes. An arrangement? Not really. And whether the distinction matters in the future is something that may come out of this case.
I expect the plaintiffs may wish to avoid the phrase “Selection and Arrangement” and yet, essentially argue for it, calling it a “combination” of two unprotectable elements.
Either way, it’s about quantity and quality.
The fact is the two songs contain almost the same four chords in the same rhythm, played over and over, enabling Thing 1, Sheeran’s segue from one tune to the other.
Thing 2 is largely factual. So then, why does Thing 2 not amount to infringement?
The question of originality (of the similar elements) is foremost. For a forensic musicologist, one way of demonstrating “insignificant similarity,” not indicative of copying, but likely of coincidence instead, is to identify prior art that shares those similar elements. In this case, that would be, showing a bunch of examples of the Thing 2 “combination” in older songs, and explaining to the jury, “Ed can’t be assumed to have gotten this chord progression and its rhythm from “Let’s Get It On,” because it already existed in so many other works that predate Let’s Get It On.” It is not original; not theirs to protect.
But sometimes, perfectly suited examples are hard to find.
In Sheeran’s last case, for example, tried in London, “Shape of You’s” lyric and melody that goes “Oh I Oh I” was compared to “Oh Why Oh Why” in the plaintiff’s work, and there was this one moment that I find amusing:
Plaintiff’s lawyer asked Sheeran’s expert to attest to the fact that “despite all your research you have not found any examples in any corner of the earth over the past 200 years which sound phonetically the same as the chorus in ‘Oh Why’ and the post-chorus in ‘Shape Of You’.” And the expert witness, Anthony Ricigiano replied, “That’s correct.”
And then the lawyer asked, “Do you not find this extraordinary?” And the witness replied, “No”.
The truth, in that case, was as simple as that. Did we need to find some another song that goes “Oh why” or “Oh I” repeatedly over a pentatonic scale to know that, first, it’s merely two syllables, and they’re not identical, and the rhythm is not identical either, and second, neither is sufficiently original or substantial such that anyone should infer one led to the other? In the real world, no, we don’t. In a courtroom, though?
Knowing this is silly as an expert or a pretty darned skilled pop star, is very different and separate from teaching it to a jury. Evidence rules in court. To have had another shining example of some other “oh why” song would’ve made it all much clearer to the jury.
Sheeran faces a similar situation again. Thing 2 is all these two songs have in common, just four chords, not even identical, but admittedly close, and played in the same rhythm. And they’re two of the only songs out there that do it quite that way.
Does that matter in my real world? No, no more than it did with Shape Of You. But here we go.
There are plenty of songs that have the chords. I need only sit and noodle on it. On my first day looking at this ridiculous case, I listed a bunch of songs here on Musicologize that employ these same four chords, including,
- I won’t last a day without you — Carpenters.
- Have I told you lately that I love you — Van Morrison
- Different Drum — Stone Ponies
- Fun, Fun, Fun — Beach Boys
- Jean, Jean, Roses are Red — Rod McKuen
- Georgy Girl — The Seekers
And with regard to “Have I Told You” I might add — as a kind reader reminded me — Sheeran has proudly admitted his Van Morrison influences.
In an interview with Q magazine, Sheeran said, “No one’s really channeled Van Morrison for a long time,” and “Everyone always channels, Michael Jackson and the Beatles and Bob Dylan, and I feel like Van Morrison is a key figure in the music that I make.”
That list isn’t the least bit exhaustive. This was just the off the top of my head list that came in the span of a few minutes when I first gave the matter any thought. A day or two later, I’d hear “Saturday’s Child” by the Monkees and realize it was the same four. Then I remembered how Pete Seeger used to play a little introduction to Both Sides Now, and examples just kept coming to me. Elton’s Crocodile Rock, the Commodores’ I’m Easy, My Girl, and others occurred to me because they should be expected to. It’s a common progression. Again, learned it on guitar when I was six.
The problem, though, is that while in the real world, I can tell you that all of these songs are relevant, but in this courtroom, I don’t think any of them will come up unless Ed himself breaks into song and spouts a playlist, Axis Of Awesome style. Scores of songs that are the same or almost the same chord progression may just confuse a jury. To really negate THING 2, you’d like to have that combination of the chords plus their precise rhythm. And not have to sell these less on-the-nose examples.
Back in the real world for a sec, the rhythm itself is nothing novel either, quite the opposite. It’s everywhere. Heck, it’s in the middle of another current copyright infringement case! If you’ve ever read an analysis of the Dua Lipa, “Levitating” case, you know that “moon light, you’re my, star light,” is sung to a very simple two-note repeating rhythm that we associate with the dance The Charleston. Well, you know what? The rhythm here in Let’s Get It On, is the same figure, just a really slowed-down Charleston.
The harmonic rhythm is also right here in some Van Morrison inspiration. It is the same as Van The Man’s “Moondance.” Just a bit peppier.
So the “harmonic rhythm” is short, basic, and common, and the four chords, in order, are short, basic, and common too. But the combination of the two, actually, not all that common.
Do I not find this extraordinary? No!
But the jury might. So they’ll need to be persuaded.
For a long time, “Georgy Girl” was the only one I knew about; I’ve known Georgy Girl since I was six too. But some recent court filings show that the Sheeran side found a few more.
It’s funny that Natalie Cole’s “I Live For Your Love,” popped into my head at some point, and I thought, “hey, there’s another one with the same four chords.” And, I could remember being annoyed in the 80s when it was current, not thinking that she had lifted the very common chord progression from Gaye or anyone else, but that Survivor might’ve been a little put out that she used the same not-so-obvious key modulation that Survivor had in a hit song only a very short time before in their “The Search Is Over.” (That, in my estimation, might’ve been more “inspiration” and less coincidence.)
But there was another earlier Natalie Cole song that better addresses Thing 2, and it is this one:
That’s playing the same four chords with the same rhythm. But, it doesn’t predate, “Let’s Get It On.”
This does though:
Quicker tempo, but the same compositional material.
So that’s a few, and the defense will evidently present a few more that are, I’d say, perhaps not quite so on-the-nose, but nearly so, and they all absolutely, in my opinion, seal the argument. Thing 2, the “combination” of the chords and the rhythm is not original to “Let’s Get It On.”
It’s a broader discussion, but “Selection and Arrangement,” “Constellations,” and here in this case, “Combinations” of unprotectable elements are having their day in music copyright litigations. And I think one bit of clarity that may come out of this case is that the court may take the opportunity to better outline how these can be applied to music copyright law going forward.