After almost five years of litigation, British singer-songwriter Ed Sheeran pulled out all the stops (and his guitar) to obtain victory over claims his 2014 song “Thinking Out Loud” infringed on the copyrights held by the estate of Ed Townsend, who co-wrote Marvin Gaye’s 1973 hit “Let’s Get it On.”[1] The lawsuit alleged that Sheeran infringed on what was expressed in the sheet music filed with the United States Copyright Office.[2] On May 4, 2023, a Federal Court jury in New York found that Sheeran did not infringe on any of Townsend’s rights to the Gaye song.[3][4]
In the world of music, the delicate balance between inspiration and imitation has long been a topic of debate, involving complex issues of musical influence and originality. The question in such copyright litigation cases involves analyzing the musical similarities between two songs. When an artist records a song, they may create two works that have copyright protection: (1) a musical work; and (2) a sound recording.[5] Here, the Plaintiff asserted that Sheeran infringed upon musical work — the underlying composition of the song. Sheeran did not deny that the tracks shared a similar four-chord pattern. The question before the jury then was whether an artist could copyright a common building block of songs that have appeared in dozens of other popular songs. In other words, where is the line drawn between being influenced by music and copying it?
The Dynamics of Ed Sheeran’s Case
As in most copyright cases, each team in the Sheeran litigation provided expert musicologists to analyze the musical components of the songs. However, what Sheeran and his team did, was perhaps a first in such litigation — Sheeran took the stand with his guitar and played several songs to demonstrate how so many popular songs, including the two at issue, are based on the same simple four-chord structure. The commonplace of these four chords in popular music was highlighted in a song by an Austrian comedy group, the Axis of Awesome, wherein they play 47 different popular songs using the same four-chord structure, including Journey’s “Don’t Stop Believin’”, James Blunt’s “You’re Beautiful”, the Spice Girls’ “2 Become 1”, Bob Marley’s “No Woman, No Cry”, Toto’s “Africa”, Avril Lavigne’s “Complicated” and Aqua’s “Barbie Girl”. The video for the song has amassed over 81 million views on YouTube and was shown at trial.[6][7] Sheeran also busted out his guitar on the stand to sing several songs showcasing the same musical progression. Sheeran’s strategy was to showcase that if you find infringement between his song and the Gaye song, so many popular hits for the past 50 years would also be infringing on the rights of past musicians. As Sheeran stated, “I feel like in the songwriting community, everyone sort of knows that there’s four chords primarily that are used and there’s eight notes. And we work with what we’ve got.”[8] Ultimately, the jury loved good music, deciding that the basic building block of so many hits is not afforded copyright protection. Thus, Sheeran and future musicians were free to utilize it in their music.
Copyright Law Not Always Crystal Clear
The Sheeran case is decidedly different than the result in the 2018 California case of Marvin Gaye vs. Robin Thicke and Pharrell Williams, where the Gaye estate alleged Thicke and Williams’s chart-topping 2013 hit “Blurred Lines” infringed upon Gaye’s 1977 song “Got to Give it Up.”[9] In that case, the estate claimed the defendants infringed upon the feel and sound of the Gaye song. There, the jury awarded Gaye’s heirs $7.4 million in damages, the largest amount ever granted in such a case.[10] That verdict sent shockwaves through the music industry, as it appeared to set a precedent that blurred the lines between homage, influence and copyright infringement by essentially issuing copyright protection for a song’s “vibe.” Several artists have expressed concern about the potential chilling effect on creativity and the subjectivity of determining infringement based on stylistic elements. While the ruling in this instance favored Sheeran, the lawsuit is sure to spark ongoing discussion about the need for clarity and guidance in copyright law, particularly in the realm of music.
Other Recent Copyright Developments
Relatedly, musicians and legal practitioners handling such infringement cases should also be aware of two important updates to the copyright law: (1) the Music Modernization Act; and (2) the CASE Act. The Music Modernization Act updates the way that rightsholders or musical works are paid royalties for online streaming services as of January 1, 2021.[11] The CASE Act, passed by Congress in December, 2020, set up a Copyright Claims Board to resolve disputes over damages totaling less than $30,000.[12]
Conclusion
As technology advances, so should the legal framework for copyright protection. As Judge Learned Hand said: “It must be remembered that, while there are an enormous number of possible permutations of the musical notes of the scale, only a few are pleasing; and much fewer still suit the infantile demands of the popular ear. Recurrence is not therefore an inevitable badge of plagiarism.”[13] Without a bright-line test for what constitutes infringement, artists and legal professionals continue to grapple with the delicate balance between artistic inspiration and intellectual property rights. The Sheeran case serves as a reminder that all artists need counsel that understand both the history of Copyright protection and the ever-changing evolution of music within the context of those very rights.
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[1] Structured Asset Sales LLC. v. Sheeran, et al., US Dist. Ct. S.D.N.Y, 1:18-cv-05839. A prior case between the same parties (U.S. Dist. Ct., S.D.N.Y, 1:20-cv-04329) was dismissed in part in 2021, though allowed the Plaintiff to proceed with the instant matter.
[2] https://www.loeb.com/en/insights/publications/2021/04/structured-asset-sales-v-sheeran
[3] https://www.nytimes.com/2023/05/04/arts/music/ed-sheeran-marvin-gaye-copyright-trial-verdict.html
[4] Final Judgment was entered on May 17, 2023. See Structured Asset Sales, supra, entry no. 218.
[5] https://www.copyright.gov/engage/musicians/
[6] The commonplace of these four chords in popular music was highlighted in a song by an Austrian comedy group, the Axis of Awesome, the video for which has amassed over 81 million views on YouTube. https://www.youtube.com/watch?v=5pidokakU4I
[7] https://www.independent.co.uk/arts-entertainment/music/news/axis-of-awesome-4-chord-song-ed-sheeran-b2334714.html
[8] https://www.rollingstone.com/music/music-news/ed-sheeran-talks-copyright-suit-impact-on-songwriters-with-apple-music-1234729278/
[9] https://www.nbcnews.com/pop-culture/music/robin-thicke-pharrell-williams-pay-5-million-marvin-gaye-estate-n947666
[10] The Judgment was later reduced to $5.3 million on appeal. https://www.rollingstone.com/music/music-news/robin-thicke-pharrell-williams-blurred-lines-copyright-suit-final-5-million-dollar-judgment-768508/
[11] https://www.copyright.gov/music-modernization/
[12] https://www.copyright.gov/about/small-claims/
[13] Darrell v. Joe Morris Music Co., 113 F.2d 80, 80 (2nd Cir. 1940) (per curiam)
