May 12, 2023 Musicology No Comments

The main takeaway from the Ed Sheeran “Thinking Out Loud” vs “Let’s Get It On” case is probably, “Why did this make it all the way to trial?” First, though, let’s remind ourselves we could be in far worse places.
“Not liable” was the right verdict. We’re not now left picking up the broken vestiges of music copyright, and we could easily have been.

But this was a mess. How can we avoid making a similar mess again, if we can avoid it at all?

First, let’s stop it with the popular “greedy shakedown” theory. It’s not that.

The Marvin Gaye estate is likely not a bunch of greedy opportunists, not least because they weren’t even involved in this case, but also because there’s just no evidence that they were anything except sincerely protecting Marvin’s legacy when they sued Robin Thicke and Pharrell Williams, who sued them first.

As for the plaintiffs here — the estate of co-writer Ed Townsend — the duty to protect your dad’s legacy is heavy. Give Kathy Griffin-Grinana a bit of break. She displays, in my view, no sign of just being in it to “shake a piggy bank.” Sheeran didn’t deserve to go through any of this, but Ms. Griffen shouldn’t be vilified here by Sheeran or any of us. There’s blame that belongs somewhere, but this ain’t it.

She’s deluded, of course, and unfortunately, she’s left feeling cheated, outspent, overmatched, and ten other things that explain the outcome apart from the fact that Sheeran didn’t need “Let’s Get It On” to write “Thinking Out Loud.” She still believes she didn’t get justice. Someone is to blame for that. She got bamboozled. Bamboozled, she remains!

Of course, this is me relying on my own experience. In the many years since I launched Musicologize, I have yet to meet a prospective plaintiff who wasn’t sincere in the belief that they had been wronged. And when Griffen says things like, “This might’ve been avoided if we could’ve just talked,” that’s what rings true. It’s naive, perhaps, but it’s sincere. Plaintiffs invariably believe they have been taken advantage of. They are in some way injured, even if it’s sometimes self-inflicted.

At some point, we should stop blaming Blurred Lines too.

Yeah, floodgates and all that, but while Blurred Lines may have set the stage in some sense, about the only thing Blurred Lines v Got To Give It Up and Thinking Out Loud vs Let’s Get It On have in common, apart from Marvin’s name, is that they are both examples of systemic failures.

Flat out praise for Ed Sheeran who held the line, twice.

Ed Sheeran was downright heroic in taking “Thinking Out Loud” vs “Let’s Get It On,” and the “Shape of You” cases to trial, chancing millions to the whims of why should we not believe very earnest but also probably overmatched juries. And I have no more patience for the idea that because he writes musical pablum (he doesn’t), he in some way brings this upon himself.

The state of pop music is however a factor.

It is a problem for music copyright that pop music is so formulaic. It’s obviously a problem for reggaeton. There’s a lawsuit out there right now where the progenitors of the reggaeton beat (maybe) are suing practically every reggaeton artist out there, pretty much, for making reggaeton. And it’s a problem for hip hop too. Simplicity is exalted in pop music today. Thou must vibe, above all else. But it is not Ed’s problem to fix. He did nothing wrong. He did not bring this upon himself by using a chord progression that is familiar and was a great basis for all the creativity he built upon it. That’s what we want him doing.

The worst system in the world except for all the others?

The bad guy in all this is the system, of which I’m a part — the courts, the justices, the attorneys, and certainly the experts, the forensic musicologists that in some measure failed here — because there was a failure. Untold time, energy, and money, to eventually decide that the earth is indeed round, not to mention risking that seven laypersons might’ve said “flat.” Sheeran would pay the bill, and live with the scar, but music copyright would be unwinding that mess for years too.

This case should perhaps never have been filed. That’s a tough line to draw, though.

This case should never have made it to trial. That’s simpler, and it’s on everybody involved.

Who gets the lions share? Let’s just say it: The musicologists and the judge.

Let me make two points on the experts. The first one is the kind one. Lots of people can and do get this stuff wrong, and not remotely from incompetence. The most popular youtube music commenters I know (and love!) but won’t name, got it wrong. They said the earth was flat. That’s how wrong. It’s confounding. That’s point number one. Point number two is to clarify, my fellow musicologists, you’re not an advocate. Your client deserves a vigorous offense or defense FROM THEIR ATTORNEY, but not from you. You are charged with providing the musical expertise, and the ability to convey it, that will enable the judge or jury to arrive at the truth. Certainty is a sign of frailty here. You are not the least bit sure that the similarities you identified could only be the result of copying. That’s either a lie or incompetence. This didn’t lend itself to certainty.

As for the court, Judge Stanton looked at it all and decided “a judgment of noninfringement as a matter of law” was unavailable. Who am I to tell him he’s wrong? But, he then reasoned, that “although the two compositions are not identical,” an average lay observer could conclude that parts of Thinking Out Loud were appropriated from Let’s Get It On.” And perhaps they could, but this was neither lyrics nor melody, it was a chord progression, brief and not identical. Could they conclude “unlawfully appropriated” and be right? No. And there was (admittedly scarce but) sufficient on-the-nose prior art available to justify ending this far earlier.

So that’s the takeaway today, I think.

Change my mind.

Written by Brian McBrearty