Alt title: “All the presumable arguments in Sheerans case that could possibly arise.”

As you may have read already there’s a new case against Thinking Out Loud, claiming (as does at least two other cases) that it infringes upon “Let’s Get It On.” This time there are additional defendants and a new registration of the 1973 recording to go along with the sheet music that was originally registered. And there’s new expert analysis.

From my perspective this still very much revolves around the question, “Can you own a groove?”

I agree with the plaintiffs that both tracks share “a combination of a certain chord progression with a certain bass line,” as well as “the shared rhythmic articulation of this chord progression-bass line combination,” which to me comprise a decent definition of “groove.”

The plaintiffs add that there are “distinct parallels in the melodies that exist between the two and the use of similar tempos in the recorded versions under consideration here.”

But to me, “parallels in the melodies” sounds ethereal and weak, and offhand I can’t imagine what they’re going to point to. (I’ve only begun to read through some of this stuff.) And as for tempo, yes, the tempos are pretty much the same, but musicologically speaking, tempo doesn’t count for much.

But “benefit of the doubt” and all that, so we press on.

Going through the arguments from the complaint, these appear to be their main points. I’ll paraphrase for brevity and so this by its nature becomes my interpretation of their case, rightly or wrongly, in italics. They’re either arguing, or I’ve inferred that they are:

1. The similar groove appears at the beginnings to both songs, and repeats throughout 70-80% of both songs.

I’d say that’s all true — similar, appears at start, covers most of the tracks.

2. The chords are I – iii –  IV –  V, over and over. Or close enough.

I’m really paraphrasing here. This is a long discussion. But I agree in principle here too. “Close enough” is the sort of thing a pair of musicologists could make an afternoon out of. The second chord is a little different from one song to the other. How much does it matter? It’s debatable, but I’m taking the plaintiff’s side for the most part, only in that those are essentially, though not precisely, the chords in question.

3. The bass lines are the same.

Tru-ish, but mostly redundant. The bass line here is just the root note of the chords. In name, they’ll be the same. In litigation, someone is going to argue about whether we start on D and go up a third to F# or down a sixth to a lower F#. Its still F#, and compositionally of little consequence. Probative of copying maybe its something, but afterward, its a trifle.

4. The lead sheet deposit copy doesn’t specify a bass line, so a musician would infer the root notes that are common to both songs’ grooves.

In other words, I think plaintiff saying “we’ve got our ‘similar grooves’ argument intact whether or not the recording gets played in the courtroom.” I’d say that’s reasonable. (This is a WAY more representative deposit copy than say “Taurus” was to the “Stairway To Heaven” trial.)

There’s a possible tiny “gotcha” here if the recording doesn’t get in. If it were me writing out the bass part, and I wanted the bass player to know when to hit the second note in the four-note groove, I’d have written it differently. But this is nit-picky. The sheet music is fairly clear and I’m not interested in pretending the grooves aren’t similar.

 5. “It is fair to conclude from this comparison that the backing pattern we have been discussing forms the basis of both songs, and that this backing pattern plays the same role in the Sheeran song as it does in the Gaye song.”

I already conceded the first point, the same groove appears throughout the song. But I’m calling out this assertion, because it begs the argument that this groove is the “heart of ‘Lets Get It On’” which I remember from the Townsend estate’s case. It makes the similarity seem more villainous when it’s the “theft of the heart of the work,” doesn’t it?

6. (On “melodic similarity) The lines “Let’s Get It On” and “When your legs don’t (work like they used to before) — those are similar.

Only the two notes over “On” and the two on “Legs Don’t” are the same in pitch, and they don’t occur on similar rhythms. This is one of those rare occasions on which I’d make the argument, “there are only 12 notes.”

How about a little exercise…

I’m gonna think of two songs at random. Actually not random… this report mentioned “My Way,” and, why overthink this, I’ll just use “Thinking Out Loud.”

Okay here I go, writing down scale degrees willy nilly.
Okay… let’s just stop… That’s the notes to 'Thinking Out Loud' most of the way to the chorus! 

'My Way' now…
535432 "I did it MY WAY!!!"

Q: does 235 appear in both? A: yes, twice in each
Q: does 434 appear in both? A: yes
Q: does 532 appear in both? A: yes

Q: Absent a series of alike pitches appearing at alike rhythmic placements, does any of this matter much? A: no

7. The stack of coincidences — the chords, the bass line, and the harmonic rhythm — is unlikely to have occurred without copying. And then once you accept that as a heck of a coincidence, the tiny melodic fragment in the context of that first unlikely coincidence must then be considered all the more conspicuous.

Well, no… it’s much less interesting than that. The chords and bass line are really more like just a single thing — a chord progression. This isn’t a melodic signature bass line, like say the beginning of “Day Tripper.” It’s just the four notes that are the roots of the chords. So you don’t really have three coincidences. You have two. Chord progression and harmonic rhythm. And that’s (literally) exponentially less an odd coincidence. It’s the “groove.”

8. The similar grooves are analogous to the way “I Got Rhythm” was the basis for many jazz tracks. Charlie Parker’s “Anthropology” is an example. But “These bebop reworkings, however, were never hits; and it seems likely that if they had ever been commercially successful, the original songwriters would have sought compensation.”

That’s clever. But across “Rhythm Changes” tunes as we collectively call them, the form of “I Got Rhythm” gets lifted wholesale, the entire 32-bars-long form with its harmonic twists and turns. That’s the whole point of Rhythm Changes; Gershwin’s chord ‘changes’ are fun and boundless to improvise over. If however only the first four measures, where you’d hear the familiar words “I got rhythm, I got music.” were all that was lifted, then “Rhythm Changes” would be just a couple repetitions of a “I – vi – ii – V” four-chord pattern, which by the way would function harmonically very nearly the same as the four chords at hand. In fact, if “Let’s Get It On” and “Thinking Out Loud” BOTH substituted the first four chords of “I Got Rhythm,” instead, plenty of people wouldn’t notice much difference at all.

Y’know? I think I’ve changed my mind. The defense should want the recording in and plaintiffs should want it out. When someone plays the deposit copy of “Let’s Get It On” on the guitar, it’s gonna sound like “Thinking” because it is like “Thinking.”  But if the recording gets in, you’re going to focus more on their completely different melodies and lyrics.

There’s not much getting around the grooves being the same. They pretty much are. As I said at the top, there’s not much factually wrong with the expert report. I only disagree with the conclusion it implies you should draw from the fact that the grooves are similar.

In a perfect world, it shouldn’t matter. And you shouldn’t fight it. It’s a bit like all the energy that was wasted arguing whether Katy Perry still liked worship music, being unable to prove that she didn’t, and leaving the jury to accept that maybe she heard “Joyful Noise.” All distraction, compared to the fact that the music wasn’t substantially similar but for an ostinato (melodic pattern) so commonplace that it shouldn’t be protectable by copyright.

So much better I would hope to argue only about that. “Georgie Girl” is the same groove. Countless other songs have patterns that are the same or nearly the same including “I Got Rhythm.”

And as to that “heart” business. The melodies and lyrics are the “hearts.” They’re what you hum when you think of these hit songs.

But I’m afraid both sides are going to spend a lot of time on the minutia of the respective grooves — the plaintiff on how “not common” “I – iii – IV – V” is. and the defense on how “iii” is different from “I” with the third degree in the bass.

The grooves are pretty much the same, and appear through nearly the entirety of both songs. But copyright law has a purpose, to reasonably protect rights holders while enabling future creativity. It’s a tricky but important balance.

Finding significant similarity based upon this groove, I’d say, discourages future creativity unreasonably. And I don’t see anything else here to move me off that square.

Written by Brian McBrearty