February 14, 2022 Musicology 2 Comments

This will be the Deep Dive on Thinking Out Loud and Let’s Get It On.

This case is still awaiting its day in court but the main arguments are fairly obvious and predictable. So, if this ever gets before a jury, well, juries are a little unpredictable, but I can tell you what I think should happen.

“Let’s Get It On” versus “Thinking Out Loud” is probably the most high-profile and interesting case out there currently. And because it follows a series of other cases that left the state of copyright law in total disarray, I wonder whether this case will bring us toward balance or further chaos. Countless articles in the wake of “Blurred Lines,” “Dark Horse,” and “Stairway To Heaven” tried to contextualize it. Initially the articles would say “Blurred Lines” and “Dark Horse” struck fear in the hearts of creatives. But then the eventual reversal of “Dark Horse” and the upholding of “Stairway” was said to have returned us to a steadier footing. We’ll see now I guess.

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

First, here’s the pretty short version.

I don’t have to bury the lede too much here. Sheeran should prevail. There’s nothing substantial enough from “Let’s Get It On” that appears also in “Thinking Out Loud” that’s original and protectable by copyright. That’s where this ends up. Still, the process matters, and I’m here to teach.

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.

Now, before any legal scholars roll their eyes, let’s address the fact that the recording of “Let’s” you just listened to is probably not very material to the case, annoyingly. Copyright law from a hundred years ago, applied in both the Blurred Lines and Stairway To Heaven trials, did not consider recordings to be published works but instead regarded the sheet music deposit copy filed with the copyright office as the published and therefore protected work. So in both “Blurred Lines” and “Stairway”, the plaintiffs had to try to establish significant similarity not with the famous recordings we all know but with whatever notes were on the respective deposit copies. You can read plenty here on the Musicologize website about how that went. And the filings so far in this Ed Sheeran case are loaded with arguments about whether the recordings should be excluded from the cases.

I’m of the mind that the law is inadequate and that since copyright vests in the creator at creation, it’s artificial if often efficient to then narrow the scope to a (usually) one-page sheet music distillation, but that’s likely how it’s going to go. But say it doesn’t! Let’s assume the plaintiffs get everything they want in that regard. Unlike what happened in the Stairway trial, let’s just assume for a moment, that they get to play the record in court. They’ve got everything they wanted.

They should still lose.

Mostly, plaintiffs will point to the similar but not identical chord progression, similar harmonic rhythm, similar bass parts, similar drums, and similar tempo. And ALL of this, when the recording is excluded, they’ll argue DOES appear on, or is at least are implied by the sheet music deposit copy. And this will be mostly true. Recording or not, this is the main stuff they have to work with. There’s not much else.

The defense will say the chord progression of “Let’s” is not so similar, is not original, and was in common use prior to let’s Get It On. And all of that is true too, they’ll say, of the bass and drums. And moreover, neither of those appear on the deposit copy and are therefore not protected by copyright and are irrelevant.

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

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

Again, by far, the most compelling plaintiff argument is that some pretty basic elements, already mentioned — collectively the “groove,” or the “feel” or “propulsive engine,” they’ll say, of the songs — are indeed similar. Critics of the “Blurred Lines” decisions, including the well-appreciated dissent from the appellate court, say that case made it possible for the first time to own a “groove” or “style,” and this was a substantial shift in the established boundaries of copyright. Others, chiefly the plaintiffs, would argue all of that fails to recognize and accept that broad and substantial similarity was proven to the jury’s satisfaction.

This case is less silly than Blurred Lines.

You can’t own a style. A groove though? Shouldn’t it depend on what’s in the groove? The argument in the actual “Thinking vs Let’s” complaint avoids the word “groove,” (wisely I think) but deconstructs the groove and examines and compares its individual components. It’s a little more impressive that way maybe. A pile of evidence looks more substantial when it’s all spread out, right?

Foremost of those components are the respective chord progressions. Much will be made of this, so let’s look at that first. 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

I could’ve skipped the roman numeral stuff. It’s just a little bit of basic music theory that goes like this:

The seven diatonic chords in the key of Eb (forgive the redundancy) are, in order...
Chord Names:    Eb   Fm   Gm   Ab   Bb  Cm  D°
Roman Num:      I    ii   iii  IV   V   vi  vii°

Now back to the chords from the two songs, that little carrot character thing I typed into the “Thinking” progression above means “degree.” Where I put a slash in one of the chord names, I am specifying the bass note. In this case, it’s letter name “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, 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? That’s gonna be debated.

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

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

A: They do this mostly by having some notes in common, and by having 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.

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

So the plaintiff will be correct that the four chords are very nearly the same. The chords are not identical, and that’s at least partly indicative that they weren’t copied, but musically, they’re arguably interchangeable.

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’ll 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. And then I believe they have an esoteric argument that when the G in the bass is doubled and reinforced with a G in the melody, you’ll possibly imagine you’re hearing “iii” even if nobody is playing it because of the overtone series.

Super quick sidebar. When you play a note, you think you’re hearing one pitch, but unless it’s a sine wave coming from an oscillator, you’re hearing several. The note you think you hear is the “fundamental” frequency. But your sound also includes other audible “partials” above that, called “overtones.” Got it?

So 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, wherein Levon Helm sings the first line and lands on the word “Nazareth,” and argues a listener might imagine they hear “iii” in the accompaniment even if “I/^3″ is what’s actually played. Then it mentions the Commodores’ “Easy” as well. He makes the correct observation that ^3 occurs both in the bass and in the vocal of the words “Nazareth” and also in the second syllable of “Easy.” Wanna hear those?

Looking at those few arguments, I would agree that the bass note is sometimes the most persuasive, but it depends upon the functional strength of the accompanying notes, case by case. I’ll give an example in a moment where the accompanying notes are super persuasive and not easily overwhelmed.

As for the half-step apart nearness of Eb and D making them minimally different? Odd, I’d say, or misleading at best. Adjacency creates, as often as not, the very least equivalence available in music. Indeed half-step relationships are often the best example of contrast and directional necessity. Consider for example, “Shave and a haircut, two bits.”

https://youtu.be/oSF9lMNjDTQ

The notes in question are “Two” and “Bits.” We showed our two songs in the key of Eb, where “Two” and “Bits” would be, (did this on purpose) “D” and “Eb” respectively. They’re right next to each other on a piano. Could they sound much less interchangeable to you?! Me either. “Bits” is the solid landing spot and “two” is shifting sand.

Moving onto “The Weight” and “Easy,” perhaps I’m missing what’s persuasive about this. Yes, G appears in both the bass and in the melody, and yes, the overtone series of that G would include D, but…

  1. the pitches of the overtone series are mostly imperceptible individually.
  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 an overtone. This is contorted.
  3. Giving some rope though, would Easy and The Weight sound pretty okay with Eb/G instead of Gm? The Weight would sound weird to me, but I have music ears, and those ears know it’s supposed to be iii. But I would expect “Easy” to sound weird to anyone. You know those soothing “ah ah ah ah’s” that fall between “That’s why I’m easy” and “I’m easy like Sunday morning?” The iii chord falls on the second “ah” which is a “D.” If you play Eb/G instead of Gm, it’s gonna make a world of difference.

But it also points out that in the verses of Credence Clearwater Revival’s “Who’ll Stop The Rain” wherein Mr. Fogarty alternately employs both Gm and Eb/G over the third lines of consecutive stanzas, the point gets more traction with me.

You’ll need to play the song to follow this, I think. 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 seems to be that both chords provide the same overall arch to the verses they serve. And I agree.

Perhaps the defense will 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 deemed significantly similar. Sometimes we hear of copyright being “thin.”

It gets interesting immediately.

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, less comfortable, meaning the listener expects the chord to change soon rather than persist. But we’ve changed the quality of the I chord only very minimally.

When a I chord moves to a iii chord, the added note D is a new color, with greater meaning and greater instability. And you’ve abandoned 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 chords are still fairly stable and both are mostly what we call “Tonic,” the most stable harmonic function. “Tonic” is where most songs begin and end. Tonic is like harmonic home base. I should clarify, THE so-called “tonic” chord is the I chord. But the iii chord and vi chords, each with two notes in common with the I chord, are pretty tonic in function.

Talk about tedious. But that’s sort the discussion we’re facing. They’ve so little else to talk about.

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

This would be fun.

Again on this same topic of how similar these second chords are, the plaintiff expert makes the observation 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.

The argument has weaknesses.

It’s not the simplest explanation but an elaborate one. Where the sheet music contains Eb notes in time with a Gm chord symbol, this more readily conveys that you are expressly NOT to play Eb/G. Is that not the default meaning — to very deliberately play “iii” with its tonal color of ^7 or “D?” Is it not a much greater logical leap to infer otherwise — that the “D” while expressly stated is actually unimportant to the composition?

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 hidden but “true” harmony.

If we’re 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. Then again I could’ve called it a “Gm6 add 11” or something less supportive of the plaintiff’s point. Frankly, the sheet music has a more plain-spoken style than any of that.

On balance, my Ebmaj13/G opinion supports the plaintiff’s argument somewhat, but I think it cuts both ways.

That’s PLENTY about whether “I/^3” is equivalent to “iii.” Are the melodies even kinda similar??

Here are some of the kinds of arguments anticipated for the melodies being significantly similar, again paraphrased by me for brevity, and hopefully clarity. I’ve read so many arguments I can barely keep them straight.

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. 

No. This is more contrast than similarity. While ^3 and ^b3 might appear similar, they’re two different notes, just as “two” and “bits” were. And moreover, remember just a few points ago when they argued that a melody note should inform how we name its accompanying chord? Here we’re 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 dissimilarity for the plaintiffs to contend with. We’d have.

"Let's Get It On" chords:    Eb  Gm    Ab7      Bb.
                             I   iii   IV       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. It’s just not much.

There’s was a lengthy argument that again the conspicuous ^b3’s in “Let’s” are pretty equivalent to the less bluesy ^3’s in “Thinking.” And that “Thinking” is just a less bluesy cover of “Let’s.” But I always reject that sort of logic. Different melodies are not made more the same by the premise that you might’ve created one melody through consideration of the other. Different is different however it comes to be.

I read an idea 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.”

That means “Let’s” employs ^6 as an ornament of ^5. This is true as far as it goes. 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. The report is likening this to an 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. It’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.” Also, IT’S NOT IN THE MELODY. It’s a little guitar figure! 

So that would be one more mostly inconsequential observation, I think.

I’ll just italicize a bunch of arguments I read and considered, and then I’ll mostly debunk them I suspect.

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.” 

Trying to imagine where this is going, but there are three chord-tones (notes) in a iii triad, ^3 ^5 and ^7 and the notion that two of them are unusual is bizarre. The point though is that neither of these songs use ^7 very much over iii. This harps on that lonely argument that iii and I/iii are the same thing, and that the chord progressions are the same. 

But there’s a logical fallacy here. Sheeran doesn’t sing ^7 and he doesn’t play iii. He’s consistent. You might try to argue that Gaye’s tune might’ve been written that way as well, except that the ^7 and its iii are plain as day in the recording and on the sheet music.

So first I’m saying, it’s hard to use the point that Sheeran is NOT doing things Gaye DID do 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? Never. Georgy Girl? Nah. Jean? Nope.

Seems to me you hit ^7 if it’s what you want, and you don’t if it isn’t. But it’s no more characteristic than ^3 or ^5.

And this chord progression is nothing novel.

It’s in Red Rubber Ball, Georgy Girl, Puff The Magic Dragon, Different Drum, Jean, My Cup Runneth Over, 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 obtuse.

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

Originality through interminable simple repetition? Ew. Especially forty years ago. It used to be unusual for songs to be this static in general. Nowadays it’s common. Not the least bit unique to Thinking.

13. One challenge Sheeran has is finding other occurrences of the chord progression with the syncopation. Georgy Girl is the main one.

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

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, modified slightly for another four-count, followed by a SubDominant Chord and then a Dominant Chord. The widely regarded “most common chord progression” I vi IV V is built in an equivalent manner. 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. Rhymically, I might them played straight, swung, syncopated or combinations thereof and you’d regard them as common — the stuff of western popular music. The stuff 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.

The defense is going to argue for filtering out prior art and say, “none of that is protectable, so tell us what is protectable in “Let’s” and is common to both songs.” And there will be nothing but light smoke, if that. The plaintiffs need to defeat that question for they cannot satisfy it. The melodies and lyrics are very different despite all the silliness I indulged before. And they’re the only parts of either of these songs that are original and protected by copyright.

And all this by the way is us 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. They will try to get the recording heard in court. Laypersons can be persuaded that similarity, any similarity, is theft. It’s not true, but that’s how it goes in court sometimes. I just don’t see this happening.

I might’ve cut to the legality and lazily skipped most of the musical analysis. I didn’t because 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.

Ultimately the two songs are alike only in ways that are simple, basic, common, and not worthy of protection by copyright. So, frankly, this is just silly; so silly that Sheeran, who I’d say has been known to give in to spurious assaults in the past, does not appear interested in doing so here. Nor should he.

Written by Brian McBrearty