March 22, 2023 Musicology No Comments

It would appear that toward the end of April, Ed Sheeran is going to be in court defending “Thinking Out Loud” against a claim that it infringes on Marvin Gaye’s “Let’s Get It On.” It’s been a long time coming, years in fact, and in that time, I’ve written quite a lot about it, because it’s the most interesting and consequential case since Blurred Lines. The musicology on “Thinking” is fairly straightforward, but I considered lots of plausible lesser arguments that might arise. And through court filings, we can see now that a lot of what might have been argued, was, and has been settled. Only a small subset remains. Here, let’s just look at the remaining items.

And as I keep saying, this one matters. How this case resolves matters a great deal, to artists and composers, and to copyright itself.

Why this case is so important.

In my view, “Thinking Out Loud vs. Let’s Get It On,” is the most important case since “Blurred Lines.” Other high-profile music copyright cases involving Led Zeppelin, Katy Perry, Dua Lipa, Mariah Carey, Taylor Swift, and Ed Sheeran (repeatedly) have filled the news over the past several years, and most of them get related to or outright blamed on the “Blurred Lines” case that opened the proverbial floodgates. When “Blurred Lines” was found to infringe on Marvin Gaye’s hit, “Got To Give It Up,” the thinking goes it allowed a monopoly on a musical style and that left all songwriters shaken, blurring the heck out of lines they thought they completely understood –roughly that if the notes aren’t similar, it is a different song. For the most part, you couldn’t previously infringe on a feeling, vibe, style, or groove. But then, suddenly, it seemed you could. And ever since, for anyone involved with music copyright, the point of reference has been “Blurred Lines.”

Music copyright disputes pretty much boil down to these two questions: was there copying, and if so, was it in such a way that anyone should really care? I didn’t want to concede it, but I have to admit “Blurred Lines” represented a shift in how we look at both of those questions and thus, it ushered in a climate of fear. And that’s why this is important. The climate of fear is counter to the goals of copyright itself. Copyright should support creativity and encourage new art for us all to enjoy.

A number of decisions since Blurred Lines have arguably restored balance somewhat, incrementally reducing “Blurred Lines” to an outlier, ever less a threatening specter. But “Thinking Out Loud” could swing things considerably. I think this one may have greater consequences than the forty years in the making “Stairway To Heaven” case, the Katy Perry “Dark Horse” outlier, or even “Blurred” itself. “Thinking Out Loud” threatens to erase the lines around what Ben Sisario’s NY Times article calls “musical DNA,” the fundamental elements in music, such as tempo, instrumentation, scales, chord progressions, and rhythms, and those last two in particular. They are the main points of contention in this case.

Chord progressions and harmonic rhythm.

Here on Musicologize, there’s an article that covered just about every esoteric point that might’ve emerged in this trial. I don’t even recommend reading all that; it’s better to eighty-twenty this.

My initial analysis was and is that the only vaguely interesting similarity between these two works was not the lyrics or the melodies Gaye and Sheeran sing, but the accompaniment; the chords and the rhythm in which they’re played (the “harmonic rhythm”), and indeed, that’s where we ended up.

The facts around those similarity:

  • The accompaniment to Marvin Gaye singing “Let’s Get It On,” is very similar to the one that accompanies Sheeran’s verses and choruses in “Thinking Out Loud.” Sheeran, perhaps regretably, illustrated this nicely when he so smoothly segued from Thinking Out Loud to Let’s Get It On during a live performance. (The video of that performance will VERY likely be shown in court. I’ll drop the link at the foot of this article for you.)
  • That accompaniment is primarily characterized by similar though not identical chord progressions; four chords that I find to have been a more common progression in the time of ‘Let’s Get It On’ than in the time of “Thinking Out Loud.” These four chords in this order are not unique to these two works nor original to “Let’s Get It On.”
  • The accompaniment is also characterized by the identical harmonic rhythm with which those four chords are presented. That is to say, rhythmically, both songs play these chords in the same way. That rhythm is also neither unique to these two works nor original to Let’s Get It On.
  • The combination of those chords in that harmonic rhythm is not unique to these two works, nor original to Let’s Get It On. But the combination is uncommon. In fact, I found only one well-known work that shares it, Georgy Girl by The Seekers.
  • Because of Georgy Girl we might entertain other unprotectable elements, such as tempo, or instrumentation. Georgy Girl is somewhat quicker than Thinking or Let’s. And tempo, while certainly not a protectable element, nor especially significant musicologically, is not entirely irrelevant, so expect to hear about it along with other unprotectable elements.
  • Trifles aside, other elements of the two works are not similar. Lyrics and melodies are notably very different.

That’s pretty much it. Although the chord progressions are not identical, you can certainly sing “Thinking Out Loud” to the accompaniment in ‘Lets Get It On’ and vice versa because they’re almost the same thing. Now, about these unprotectable elements that we’re still going to be talking about…

“Selection And Arrangement”

I think the applicability of “Selection and Arrangement” itself will be on trial here, similar to the way the “inverse ratio rule” was in the “Stairway To Heaven” case.

I’m not a lawyer, but let me try to explain “selection and arrangement.”

A sufficiently creative and original selection and arrangement of elements can enjoy protection by copyright even if the individual elements taken separately are themselves not original and protectable. This is perhaps best described through an example such as Rolling Stone Magazine’s listing and ranking of the 500 Greatest Songs Of All Time. Rolling Stone editors select the songs for the list and arrange them in the list. It’s obvious they didn’t create the content — the song titles or the artists’ names — those are the preexisting data — but Rolling Stone owns its original and creative selection and arrangement of those unoriginal data elements. That list, though, is lengthy. What if it were quite brief? What if it were only the top three songs of all time. Would that be probative of copying? How many selected and arranged similar songs in a row is too many to be thought a coincidence? And separately, would so brief a list be original and creative enough to be protected by copyright?

What is conspicuous? I often think in terms of “x, y, and z” values. The volume or length of the similarity; the sheer number of similar events and the length of time over which they occur. The complexity of the similarity might be the “height” of the stack of coinciding events. And the novelty is the z-axis, the depth; how weird we ask are these musical choices that are similar? Weakness in one value might be compensated for by strength in another.

In both “Thinking” and in “Let’s,” the chord progression (identical or not) is not original, and the harmonic rhythm is also not original. But does the combination of the two constitute a selection and arrangement of two individually unprotectable elements that itself is sufficiently creative and original to be protectable by copyright?

Is it even a selection and arrangement? I would argue, no, not in any practical way. It strikes me as a bizarre way to perceive this small amount of musical information. On some level, of course, all music is a selection and arrangement of unprotectable elements, e.g. notes, chords, rhythms, tempos, scales and scale fragments, and so forth. But is it clarifying to view the chord progression and its harmonic rhythm that way? The point is to arrive at the truth. Does this lens help?

Does it matter that they’re “arranged” rather atop one another, not sequentially; they’re chords played in a rhythm, as chords are wont to be. The only value I see in this approach would be a disingenuous one that might confuse a jury into reasoning that because the works are indeed one unprotectable element combined with another unprotectable element, the combination is original and creative enough to be protectable, which would be logically flawed. (Is that a strawman? I’m not good at naming fallacies.)

I suspect when this case is over, we will get greater clarity around the application of selection and arrangement in music copyright as we did with the inverse ratio rule in the Stairway To Heaven decision.

Here’s that video. The defendants have argued it should be excluded, but they have not succeeded thus far.

Written by Brian McBrearty