February 14, 2022 Musicology 3 Comments

A Deep Dive on Thinking Out Loud and Let’s Get It On.

“Let’s Get It On” versus “Thinking Out Loud” is probably the most high-profile and interesting case out there currently. And it follows a series of other high-profile cases that leave the state of music copyright law somewhat in disarray. Countless articles in the wake of “Blurred Lines,” “Dark Horse,” and “Stairway To Heaven” have tried to contextualize it. Initially, headlines were blaring that “Blurred Lines” and “Dark Horse” “struck fear in the hearts” of creatives. Then the eventual reversal of the shocking “Dark Horse” verdict and the upholding of “Stairway” was said to have “returned us to a steadier footing.” We’ll see. This case is important, and if it were to go sideways it would take us at least two steps back and into chaos. I have always spoken of Blurred Lines as disastrous. I’ve come to believe that a bad verdict on Let’s Get It On and Thinking Out Loud would be an even worse one.

These verdicts matter. The north star in all this is that copyright law serves the important purpose of encouraging creativity and achieves this through an admittedly delicate balance of protecting rights holders while enabling an appropriate amount of derivation of prior works in the creation of new ones. Its intent, I think, is beneficial, noble, and worth defending and preserving. Preserving it means getting cases like this right. Again, we’ll see.

First, the pretty short version, which is more than sufficient.

The deep dive gets pretty in the weeds, so let me offer a way out. I don’t need to bury the lede further. In a nutshell, Sheeran should prevail because there’s insufficient original material that’s protectable by copyright in “Let’s Get It On” that appears also in “Thinking Out Loud” for the plaintiffs to make their case. That’s the succinct reason. I’ll expand on it a little more; still the short version.

Here are the two songs, not because you haven’t heard them before, but just as a refresher, an initial reference point.

Maybe you hear them as similar. Maybe you don’t. The fact is, they are a bit.

Two rather separate battles.

Let’s quickly mention a technicality — the fact that the recording of “Let’s” that you just listened to is, annoyingly, probably not very material to the case. Yes, that’s crazy, but here’s why, quickly: Copyright protects “published works,” and prevailing copyright law from a hundred years ago did not consider recordings to be “published” works but instead regarded the sheet music deposit copy that gets filed with the copyright office as the published and therefore protected work. In the “Blurred Lines” and “Stairway” cases, the plaintiffs had to establish significant similarities not with the famous recordings we all know, but with the notes that appeared written on their respective deposit copies. You can read plenty here on the Musicologize website about how that went. Filings thus far, in this case, are packed with arguments about whether the recording of “Let’s Get It On” should be excluded.

I happen to think that it’s inadequate and artificial to narrow the scope to a (usually) one-page sheet-music rendition, but it’s a complex problem. And in the end, we should be prepared, that’s probably how this is going to go. But to make a point, let’s say it doesn’t go that way! Let’s assume the plaintiffs get everything they want in that regard, and unlike in the “Stairway To Heaven” or “Blurred Lines” trials, here they get to play that record in court, a huge win for them. Let’s just pretend they’re going to get it.

They should still lose, and here, at last, is the still pretty short version of why.

The plaintiffs need to rely almost completely on these few things shared by both work: similar but basic chord progressions, similar but basic harmonic rhythms, similar but basic bass and drum parts, and a similar tempo. And by the way, with or without the recording being allowed, they’ll argue these elements are found or are at least implied by the sheet music deposit copy.

And all of that will be mostly true, but it’s not much. And there’s not much else. Not really.

The defense will respond, saying the chord progression in “Let’s” is not original and was in common use before “Let’s Get It On.” (“Let’s Get It On” is original, but its chord progression by itself is not.) They will present a long list of other familiar works containing chord progressions very much like both “Let’s” and “Thinking.” And then, when they’ve made the case for how common the chord progression is, they’ll point out that the four-chord progression in “Thinking” actually differs somewhat from “Let’s.” So, it’s just four chords, common, basic, brief, and it’s not even identical.

The defense will be right in every way that matters. That’s the short version.

Now the long, very very long musicologized version. I’m a little sorry.

Let’s indulge the arguments and go through the process and see if we can get more insight and value out of this.

I’m not going to indulge any “selection and arrangement” type of reasoning here. If it should be raised at some point, perhaps at trial, I’ll get all worked up about it then. For now I’ll just be stubbornly dismissive and talk about music and not phone books.

Again, by far, the most compelling and maybe the only real plaintiff argument is that some pretty basic elements, already mentioned — which we will now call, collectively, the “groove,” or “feel,” or “propulsive engine,” of the songs — are indeed similar. This puts it very much in the context of “Blurred Lines.” Critics of the “Blurred Lines” decisions, including the dissent from the appellate court, say that decision made it possible for the first time to own a “groove” or “style,” and this was a substantial shift from the established boundaries of copyright. Others, chiefly the plaintiffs, would say such objections fail to recognize and accept that broad and substantial similarity was proven to the jury’s satisfaction.

I agree with them somewhat. Despite a terrible “Blurred Lines” verdict and Judge Nyugen’s dissent, you really can’t own a style. It just seemed that way. A groove though? At some point, it has to be depend on what’s in the groove? And the actual “Thinking vs Let’s” complaint filing doesn’t contain the word “groove,” (wisely) but rather it deconstructs the groove and examines and compares its individual components. Very smart. A pile of evidence looks more substantial when it’s all spread out, right?

The Chord Progressions

Foremost of those individual components are the respective chord progressions. We will take a closer look than before. Much will be made of this.

The main progressions in the two songs are these:

"Let's Get It On" chords:    Eb  Gm    Ab   Bb.
                             I   iii   IV   V

"Thinking Out Loud" chords:  Eb  Eb/G  Ab   Bb.
                             I   I/^3  IV   V

The roman numerals are just a little bit of basic music theory that goes like this:
The seven diatonic chords in the key of Eb (forgive redundancy) are, in order...
Chord Names:    Eb   Fm   Gm   Ab   Bb  Cm  D°
Roman Num:      I    ii   iii  IV   V   vi  vii°

That's E flat, F minor, and so on. Lower case numerals represent minor chords. 

Now back to the chords from the two songs. That little carrot character thing I typed into the second chord from the “Thinking” progression means “degree,” and when I put a slash, I am specifying a bass note other than the one for which the chord is names. In this case, it’s the bass note “G” which is the third degree or 3rd note of the Eb major scale. (Eb major scale is Eb F G Ab Bb C D Eb) Get it? If not there’s my very quick theory lesson over here.

Obviously enough, three of the four chords in both songs are identical; only the second ones are different. How much difference does that one chord make to the overall similarity of the four-chord progression? Oh, they’ll argue this for a long time.

The plaintiffs will argue it makes almost no difference at all, not just because it’s only one chord out of the four, but because the two different chords hardly sound different; they’re mostly equivalent and arguably pretty interchangeable.

Q: How can chords (notes sounding together) that are not identical be similar, equivalent, and interchangeable?

A: By having some notes in common, and by sharing the same “harmonic function,” which is a music theorist’s way of saying something like, “they both make the listener feel kinda the same way at hearing them and impart the same set of expectations for what chords and notes might be coming next.”

Here’s a quick look at the notes that make up the two chords that weren’t identical.

The notes in an Gm chord are...  G   Bb   D.
The notes in a Eb/G chord are... G   Bb   Eb.

So two of the three notes are shared, start with that.

Further, they will argue that the bass note of a chord has so much harmonic function clout that the other notes are of lesser relevance. In other words, the “G’ in the bass, common to both songs, is far more important than the other notes accompanying it.

Then they may say that the different notes, Eb in one and D in the other, are immediately adjacent notes only a half-step apart, so they’re minimally different.

The bass note argument is valid enough. The adjacency argument though would be misleading. In most cases, notes that are immediately adjacent are arguably the least similar sounding notes in music.

How far can this go? Consider that the plaintiffs have an esoteric argument that when the G in the bass is accompanied by a G in the melody as it is in “Thinking,” you’ll perceive the “iii” chord even if nobody is playing it because of the overtone series. So they can argue that both songs have that “d” note even if Sheeran doesn’t play a “d.” I told you this was a deep dive.

Q: What’s the overtone series?

A: Roughly it’s like this: You play a note, you think you’re hearing one pitch, but unless it’s a pure sine wave coming from an oscillator, you’re actually hearing several pitches. The pitch you hear most is the “fundamental” frequency. But the sound also includes other audible “partials” at pitches above that, called “overtones.” Pitch or frequency is measured in hertz, and overtones occur at integer multiples of the fundamental frequency. These overtones give instruments their character. A flute has a different overtone profile than a bell. Got it? Kinda? Still awake?

When you or Ed Sheeran play a “G“, one of the more prominent overtones is gonna be “D.” A plaintiff exhibit if I’m not mistaken offers other examples, such as “The Weight” by The Band. Levon Helm sings the first line, “Went down to Nazareth,” and when he lands on the word “Nazareth,” they argue a listener might imagine they hear the “D” that would be in a “iii” chord even if “I/^3″ is what’s actually played. Then it mentions the Commodores’ “Easy” as well. Wanna hear those?

Are they right? Kinda.

  1. The pitches of the overtone series are still mostly imperceptible individually, but yes, they’re there.
  2. The Weight and Easy actually employ the iii chord, not I/^3 as Thinking does, so nobody needs to imagine hearing the note as only an overtone. It’s not apples to apples.
  3. What if I gave them some rope though? Would “Easy” and “The Weight” sound pretty okay if they swapped their Gm for Eb/G? Maybe, The Weight. It would sound weird to me, but I have music ears, and those ears know it’s supposed to be “iii.” Other ears would probably not notice. I did say earlier that the two chords are somewhat equivalent. “Easy” illustrates it differently I believe. You know those soothing “ah ah ah ah’s” in the backing vocals between “That’s why I’m easy” and “I’m easy like Sunday morning?” The iii chord coincides with that second “ah” which is sung to a “D.” If the band played Eb/G there, it would’ve been awkward, and I think you’d finding jarring to listen to. And moreover, if someone were writing out the music to “Easy” and wrote the chord Eb/G above that D in the melody, that would be a musical crime of some sort.

So far, not impressed. They have more luck with their next example.

In Credence Clearwater Revival’s “Who’ll Stop The Rain,” Mr. Fogarty alternately employs both Gm and Eb/G over the third lines of consecutive stanzas.

You may need to play the song to follow this. The third line of verse one “Clouds of mystery pourin” stays on an Eb chord — a repetition of the Eb played over the first line “As long as I remember,” — but the third line of the second verse “Caught up in the fable” is accompanied by Gm — a contrast to the first line, “Went down to Virginia” (or something like that.) So the point would be that both chords provide the same overall arch to the verses they serve. And I’d agree. This is a decent illustration of how the two chords are somewhat interchangeable.

The opposite perspective.

The defense may well argue that since it’s only four chords across just four measures of music (though repeated throughout the song) musicological norms would demand that the similarity be identical or very nearly so to be considered similar. Sometimes we hear of copyright being “thin.” Let’s look at it from the defense’s perspective. Sure, these two chords are a bit similar, but they’re not the same. How are they different and what difference does it make?

When a “I” chord changes by bass note only to become a “I/^3″ you haven’t added any new tones. You’ve only changed which of the three notes is heard lowest. This has the effect, functionally, of making the chord less stable and less comfortable, and the listener will expect the chord to soon change rather than persist. But we’ve changed the quality of the I chord only very minimally. It’s still the same three notes.

When a piece of music goes from the I chord and moves to a iii chord, it introduces the note D, a new color, with meaning and greater instability and abandon the note for which the key is named, Eb, bringing greater instability. You’ve changed the chord more, but still not very much.

So this is relative. Both options are mostly what we call “Tonic,” the most stable harmonic function. “Tonic” stability is where most songs begin and end. “Tonic” is like harmonic home base. And while only the I chord is the so-called “tonic” chord, the iii chord and vi chords, each with two notes in common with the I chord, are relatively tonic in function.

Even I can see how that’s tedious. But it’s the sort of discussion we’re facing. They have so little else to talk about!

What if the chord written in the deposit copy is wrong?

This would be a fun one.

Further arguing how similar these second chords are, a plaintiff expert observed that when “Let’s” chord moves from Eb to Gm, an Eb note occurs in the melody much of the time whereas D notes occur much more rarely. The expert concludes that this Eb note implies the second chord in “Let’s” is, or at least could’ve been written in the deposit copy as, an Eb/G (I/^3) after all. This touches upon the same point I made about what chord should be written above the “ah ah ah ah” in “Easy.”

The argument has weaknesses.

First, it’s just the less available interpretation. I’d say if the sheet music contains Eb notes in the melody but a Gm chord symbol, this more readily conveys that you are expressly NOT to only move the bass note and play Eb/G but very deliberately play “iii” with its tonal color of ^7 or “D?” It’s a much greater leap to infer otherwise — that the “D,” while expressly stated, is actually unimportant to the composition or a mistake? Next, it’s not what’s on the record, so we’re only here because the record was barred from the trial. That’s kinda funny.

I’d point out also that the “C” and “Gb” notes you also find sung over the “iii” chords are the more prominent out-of-place melody notes in that circumstance. But they don’t support the story that I/^3 is the veiled but “true” harmony so we won’t talk about those.

If we’re damned determined to blame the sheet music scribe, taking into account the C and the Eb, ignoring the bluesy Gb’s, I might’ve labeled the chord as Ebmaj13/G, or I could’ve called it a “Gm6 add 11” or something much less supportive of the plaintiff’s point. All of these are defensible and serve different sides. Frankly, the sheet music has a more plain-spoken style than any of that. This is much ado about nothing.

That’s PLENTY about whether “I/^3” is equivalent to “iii.” And this is where we come back down to earth, even if we’re deep diving. It doesn’t matter that those two chords might be kinda similar. The whole chord progression can be kinda similar and it doesn’t matter. It’s not original and protectable by copyright. It’s too basic. Too common. Too insignificant.

Are the melodies even kinda similar?? They gotta try, right?

There’s really no way to fight this fight. But here are some of the kinds of arguments anticipated for the melodies being significantly similar, again paraphrased by me for the sake of brevity.

There’s an observation that the melody in “Let’s” uses bluesy Gb’s (that’s ^b3), and “Thinking” similarly finds its way to ^3, and both serve as dissonant sevenths over the IV chords. 

This is grasping for stuff that appears to serve them. While ^3 and ^b3 might appear similar, they’re two different notes. It’s arguably more contrast than similarity.

And moreover, remember just a few points ago when they argued that a melody note should inform how we name its accompanying chord? Here they’d be likening “G” and “Gb,” and these would result in an additional different chord in the progression, the third chords in the progression would be Abmaj7 and Ab7. A new self-inflicted dissimilarity for the plaintiffs to contend with. This one:

"Let's Get It On" chords:    Eb  Gm    Ab7      Bb.
                             I   iii   IV7       V

"Thinking Out Loud" chords:  Eb  Eb/G  Abmaj7   Bb.
                             I   I/^3  IV       V

The plaintiff report notes that both verse melodies end on the note Eb against Bb in the accompaniment. Yep. That’s true. Happens in a gazillion other melodies too.

Again relying upon the shaky idea that the bluesy ^b3’s in “Let’s” are pretty equivalent to the less bluesy ^3’s in “Thinking,” they might characterize “Thinking” as a less bluesy version of “Let’s.” But that’s begging as all hell. And this should be a whole article by itself: Different melodies are not made more the same by the premise that the author of one might’ve created their melody with consideration of the other! Different is different however it comes to be.

More minutae that might come up in court. I read an idea that there’s similarity in that “both songs use the same pitch relationship in the same voice for the same ornamental function relating the same scale degree to the same non-chord tone.” We can look at that I guess…

In the latter half of the chorus, the second time Gaye sings “Let’s Get It On,” “On” lands on C and resolves to Bb one beat later. In numerical terms, “Let’s” employs ^6 as an ornament of ^5. The plaintiffs are I think likenening this to similar ornament in Thinking. But in “Let’s” it’s mostly a “suspension.” Gaye lands on the non-chord tone “C” on the strong beat and releases to the chord tone Bb. That’s a basic musical device. Sheeran’s ornament is rhythmically different. It’s an anacrusis — a couple notes at the end of the phrase that clear the way for the first strong beat of the next phrase, a “pickup.” But the punchline is, IT’S NOT IN THE MELODY. It’s a little guitar figure Sheeran plays! We’re so far into inconsequential almost random observations that it’s getting funny.

I’ll just italicize a bunch of tid-bit analysis arguments that might be made or were made in filings and then evaluate them quickly:

The Gaye – Townsend composition’s upper-voice emphasis on ^5 and ^3 shown throughout the deposit copy is unusual when supported by the iii chord, which is more characteristic with ^7 in the upper voice.” 

I have to try to imagine where this is going, but there are three chord-tones (pitches) in a iii triad, ^3 ^5 and ^7 and the notion that two of them are somehow “unusual” is especially weak. To say that neither of these songs use ^7 very much over iii is to harp on that lonely argument that iii and I/^3 are the same thing, and that the chord progressions are the same. And there’s a logical fallacy here besides. Sheeran doesn’t sing ^7 and he doesn’t play iii. He’s consistent. The ^7 over iii chords in “Let’s” are plain as day in the recording and on the sheet music. So firstly I’m saying, it’s hard to employ the point that Sheeran is NOT doing things Gaye DID in service to your copying argument. Then, I’m saying Different Drum by the Stone Ponies plays the same four chords for two verses, and NEVER hits the supposedly more characteristic ^7. Red Rubber Ball? Georgy Girl? Jean? All songs with the same chords, no supposedly very characteristic ^7. This is bunk.

Let’s Briefly Return To The Only Thing That Really Matters, just to re-center ourselves.

This chord progression is nothing novel. The case fails there. And the rest of this is indulgent.

I – iii – IV – V is literally the first chord progression I can remember being excited about as a kid. On a guitar, age 6. “Where are you going my little one, little one.”

It’s in Red Rubber Ball, Georgy Girl, Puff The Magic Dragon, Different Drum, Jean, My Cup Runneth Over, and some stupid movie theme called “Brother Of The Wind” that just popped into my head from when I was at a drive-in movie when I was like 5 that I’ll have to google now.

This progression is simple and basic; arguing otherwise is dubious.

Back to ridiculous arguments that might nevertheless have their day.

It is very unusual to repeat the I – iii – IV – V progression as a loop without contrast, and especially rare to do so throughout the entirety of both verses and choruses.

Arguing originality and similarity through interminable repetition of an unoriginal progression? Ew. It used to be unusual for songs to be this static in general. Nowadays it’s common. It’s not the least bit unique to “Thinking.”

Syncopation

One challenge Sheeran has is finding other occurrences of the chord progression with the same harmonic rhythm. I listed a bunch of songs that play the same four chords as these two. But they don’t play them in the same rhythm exactly. Too much is going to be made of this.

It’s a simple chord progression over a simple rhythm. But it isn’t easy to find other examples that do the same exact thing. “Georgy Girl” is the main one. It might be the only one.

This argument needs to be put down though. Is syncopation a common musical device? Yes.

I’m reminded of this from Sheeran’s recent case involving “Shape Of You.”

In court, Andrew Sutcliffe QC, representing Mr Chokri and Mr O’Donoghue, asked the expert (Sheeran’s): ‘You accept don’t you Mr Ricigliano 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.’

‘That’s correct,’ Mr Ricigliano said.

‘Do you not find this extraordinary?’ Mr Sutcliffe asked, with the expert replying: ‘No’.

Daily Mail UK

This is similarly “not extraordinary.”

It’s so pedantic to even explore this. A thousand tunes should be written over that progression and that groove without anyone saying one significantly copies another on that basis. That’s how copyright is supposed to work.

What we really have is the Tonic Chord for a four-count, a slightly modified but still tonic chord for another four-count, followed by a SubDominant Chord for another four count, and then a Dominant Chord for a four count. “I vi IV V” is built in an equivalent manner and might be the world’s most familiar progression. I can substitute here and there, show you ten variations in five minutes all having that very familiar, not at all novel, chord function pattern. In terms of harmonic rhythm, I might them played straight, swung, syncopated, or combinations thereof and you’d regard them ALL as common — just the stuff of western popular music. The stuff that most of us, whether we realize it or not, expect and prefer to hear as the basis for most everything on our pop Spotify channel.

It Should Keep Coming Back To This One Truth, as I keep doing.

The defense is going to argue for “filtering” out prior art, saying, “Tell us what is protectable in “Let’s” and is common to both songs.” The plaintiffs need to defeat the question itself, for they cannot satisfy it. The idea that the syncopated chord progression is original enough to enjoy copyright protection is comical. It would be a travesty surpassing Blurred Lines, I think. The melodies and lyrics are very different despite all the silliness we indulged here, and they’re the only parts of either of these songs that are original and protected by copyright.

All of this, don’t forget, is mostly our looking at the two recordings — which is almost certainly NOT going to happen in court. Instead, they’re more likely going to be comparing “Thinking” to the sheet music deposit copy of “Let’s.” There are no drum parts indicated there. There is far less musical information on the page. The plaintiffs will need to argue that there are notes implied via musical shorthand. This doesn’t turn on that, as I’ve said from the beginning. Overall, unlike in the Stairway case, the deposit copy of “Let’s” is a mostly sufficient representation of “Let’s.” The expected exclusion of the audio recording does NOT leave the plaintiffs nearly so extremely shorthanded. I’m not so sure they aren’t better off actually, but that’d be a longer discussion. They will try to get the recording heard in court and laypersons might be persuaded that similarity, any similarity, is theft. That’s how it goes in court sometimes. I just don’t see this happening.

Ultimately any similarities observed between these two songs are elements that are simple, basic, common, unoriginal, and not worthy of protection by copyright. None of the ideas we’ve indulged come close to changing that. They’re just diversions.

Sheeran will prevail again. “Let’s Get It On” will be not the least bit diminished by it. And as for copyright law and the climate of fear, it will all take another step back toward the noble place it’s supposed to occupy, encouraging creativity, and giving us more art to enjoy.

Written by Brian McBrearty