Ed Sheeran is one of the most popular singers – songwriters in the world. Having sold 150 million albums worldwide, the Grammy winner’s songs have resonated with fans across the globe. Therefore, it came as a rude shock to them when the singer was sued for alleged copyright infringement in his widely popular song “Thinking Out Loud,” by the Estate and Pairs of the late producer Ed Townsend, who co-wrote the classic song “Let’s Get It On” along with the legendary soul singer Marvin Gaye.
With this article we aim to shed some light on the background of the lawsuit relating to Sheeran’s song and give an insight into what qualifies as copyright infringement when the similarity of underlying works in a sound recording is in dispute.
Case Background
Plaintiffs alleged that the song “Thinking Out Loud” was entirely and purely based on the beats and tune, chord progression and harmonic rhythm of Marvin Gaye’s song “Let’s Get It On” and thus is an infringement of copyright.
We can infer that the case had these three following issues:
(a) Can chord progressions get copyright protection or would they lack originality since the same are just building blocks for producing a sound?
(b) Did Sheeran’s song violate the copyright of Marvin Gaye’s song “Let’s Get it On”?
(c) Despite the fact that the lyrics have not been copied, can Sheeran plagiarise the essence of Marvin Gaye’s song?
Two main arguments were placed before a District court in New York State in Sheeran’s defence. Firstly, his song, only has the routine elements which are not unique or protected under the law. Secondly, if every chord, melody and rhythm is made a part of litigation, it would kill creativity and shall make composers and songwriters hesitant to incorporate these since they would be in constant fear of the elements already being a part of previously produced songs.
Interpretation of the Court
It is interesting to note that to prove his stance, Sheeran did a mashup of his song “Thinking Out Loud” versus Gaye’s song “Let’s Get It On” in the in order to establish that the 4-chord progression used in his song (and made the basis of the lawsuit) was very common and thus was not a violation of Gaye’s copyright. The Court noted that under the US copyright law, in cases of copyright infringement, the Plaintiff having a valid copyright has to prove that the Defendant has actually copied the Plaintiff’s work. Additionally, there needs to be a substantial similarity between the two works in dispute. Talking specifically about music infringement and substantial similarity, the onus is on the Plaintiff to prove that the Defendant has infringed a substantive part of Plaintiff’s work, which work is actually pleasing to its listeners.
It is the duty of the Court to compare the two works in totality and not just the individual allegedly infringing elements. It was also clarified by the Court that a song’s aesthetic appeal is majorly based on an unprotectable element; and that till date, there is no jurisprudence which gives copyright protection to a combination of two unprotectable musical elements.
In the last leg of the summary judgement in question, the Court observed that all songs are constructed on a limited number of notes and chords. It is these limited chords that a composer combines in order to create a song, in a manner which is pleasing to the ears of its listeners. Applying this principle to the two songs in dispute, the Court ruled that since a composer has a restrictive playing ground when it comes to notes and chords, granting copyright protection to the combination of chords progressions and harmonic rhythms (which are not protectable) in Gaye’s “Let’s Get It On” would give the song monopoly over the basic musical building blocks, i.e. notes and chords. The Court further clarified its stance by stating that the notes, the chord progressions and harmonic rhythms in the song “Let’s Get It On” were previously used in twenty-three songs made before the said song was composed, thus, making it very common and not subject to copyright protection. The court finally noted, “As a matter of law the combination of the chord progression and harmonic rhythm in “Let’s Get It On” is too commonplace to merit copyright protection.”
Conclusion
A pop song’s essence lies in its chord progression and harmonic rhythm. The very purpose of granting copyright protection to a work is to promote creativity and provide some recourse to the creator in cases of infringement. In relation to this, copyright protection does not subsist in mere usage of chord progression and harmonic rhythm; rather in how these elements are exploited to create something distinct and unique. The number of notes and chords available to any composer remains the same. The real test of copyright protection lies in how these limited building blocks are utilised to create something which is a treat to the listener’s ear.
Accordingly, in cases of alleged copyright infringement of songs, the following points should be considered as a guiding light –
(a) It has to be proved by the Plaintiff that a substantial part of the protected work is copied and by virtue of the same, a substantial similarity exists between the copyrighted work and the allegedly infringing copy; and
(b) In cases of substantial similarity between the works in question, the court should refrain from comparing only the individual disputed elements in the works. Rather, the court is required to evaluate the two works as a whole, the total concept and the entire feel of the alleged infringing copy vis-a-vis the allegedly infringed copy.
Although the Court in Southern District of New York granted relief to Ed Sheeran in May this year, another Plaintiff filed a fresh appeal at a Federal Appeals Court on September 29, 2023 challenging the summary judgement granted to Sheeran which means that the case may not be over yet.
Case Background
Plaintiffs alleged that the song “Thinking Out Loud” was entirely and purely based on the beats and tune, chord progression and harmonic rhythm of Marvin Gaye’s song “Let’s Get It On” and thus is an infringement of copyright.
We can infer that the case had these three following issues:
(a) Can chord progressions get copyright protection or would they lack originality since the same are just building blocks for producing a sound?
(b) Did Sheeran’s song violate the copyright of Marvin Gaye’s song “Let’s Get it On”?
(c) Despite the fact that the lyrics have not been copied, can Sheeran plagiarise the essence of Marvin Gaye’s song?
Two main arguments were placed before a District court in New York State in Sheeran’s defence. Firstly, his song, only has the routine elements which are not unique or protected under the law. Secondly, if every chord, melody and rhythm is made a part of litigation, it would kill creativity and shall make composers and songwriters hesitant to incorporate these since they would be in constant fear of the elements already being a part of previously produced songs.
Interpretation of the Court
It is interesting to note that to prove his stance, Sheeran did a mashup of his song “Thinking Out Loud” versus Gaye’s song “Let’s Get It On” in the in order to establish that the 4-chord progression used in his song (and made the basis of the lawsuit) was very common and thus was not a violation of Gaye’s copyright. The Court noted that under the US copyright law, in cases of copyright infringement, the Plaintiff having a valid copyright has to prove that the Defendant has actually copied the Plaintiff’s work. Additionally, there needs to be a substantial similarity between the two works in dispute. Talking specifically about music infringement and substantial similarity, the onus is on the Plaintiff to prove that the Defendant has infringed a substantive part of Plaintiff’s work, which work is actually pleasing to its listeners.
It is the duty of the Court to compare the two works in totality and not just the individual allegedly infringing elements. It was also clarified by the Court that a song’s aesthetic appeal is majorly based on an unprotectable element; and that till date, there is no jurisprudence which gives copyright protection to a combination of two unprotectable musical elements.
In the last leg of the summary judgement in question, the Court observed that all songs are constructed on a limited number of notes and chords. It is these limited chords that a composer combines in order to create a song, in a manner which is pleasing to the ears of its listeners. Applying this principle to the two songs in dispute, the Court ruled that since a composer has a restrictive playing ground when it comes to notes and chords, granting copyright protection to the combination of chords progressions and harmonic rhythms (which are not protectable) in Gaye’s “Let’s Get It On” would give the song monopoly over the basic musical building blocks, i.e. notes and chords. The Court further clarified its stance by stating that the notes, the chord progressions and harmonic rhythms in the song “Let’s Get It On” were previously used in twenty-three songs made before the said song was composed, thus, making it very common and not subject to copyright protection. The court finally noted, “As a matter of law the combination of the chord progression and harmonic rhythm in “Let’s Get It On” is too commonplace to merit copyright protection.”
Conclusion
A pop song’s essence lies in its chord progression and harmonic rhythm. The very purpose of granting copyright protection to a work is to promote creativity and provide some recourse to the creator in cases of infringement. In relation to this, copyright protection does not subsist in mere usage of chord progression and harmonic rhythm; rather in how these elements are exploited to create something distinct and unique. The number of notes and chords available to any composer remains the same. The real test of copyright protection lies in how these limited building blocks are utilised to create something which is a treat to the listener’s ear.
Accordingly, in cases of alleged copyright infringement of songs, the following points should be considered as a guiding light –
(a) It has to be proved by the Plaintiff that a substantial part of the protected work is copied and by virtue of the same, a substantial similarity exists between the copyrighted work and the allegedly infringing copy; and
(b) In cases of substantial similarity between the works in question, the court should refrain from comparing only the individual disputed elements in the works. Rather, the court is required to evaluate the two works as a whole, the total concept and the entire feel of the alleged infringing copy vis-a-vis the allegedly infringed copy.
Although the Court in Southern District of New York granted relief to Ed Sheeran in May this year, another Plaintiff filed a fresh appeal at a Federal Appeals Court on September 29, 2023 challenging the summary judgement granted to Sheeran which means that the case may not be over yet.
Contributors – Vyoma Patel, Khushboo Pareek & Rutvik Mehta