A closely watched music copyright trial is set to begin Monday in federal court in Manhattan, where a jury will decide a lawsuit accusing Ed Sheeran of copying his Grammy-winning ballad “Thinking Out Loud” from Marvin Gaye’s soul classic “Let’s Get It On.”
Sheeran is expected to testify at the trial, which is getting underway less than two weeks before he plans to release a new album and begin an extensive North American stadium tour. The case, originally filed in 2017, has been delayed multiple times.
The music industry is keenly interested in the outcome. Over the last decade, the business has been rocked by a series of infringement suits that have involved questions of just how much or how little of the work of pop songwriters can be protected by copyright, and how vulnerable they are to legal challenges.
The trend began in 2015 when a jury found that Robin Thicke and Pharrell Williams, in their hit “Blurred Lines,” had infringed on the copyright of another Gaye tune, “Got to Give It Up,” and they were ordered to pay more than $5 million in damages. The case shocked many legal experts — and musicians — who believed that Thicke and Williams were being penalized for using basic musical building blocks, like harmonies and rhythmic patterns, that had long been considered part of the public domain.
In 2020, an appeals court decision affirming Led Zeppelin’s victory over a copyright challenge to its song “Stairway to Heaven” seemed to steer case law back to more familiar territory. But plaintiffs are free to seek relief if they feel their rights have been infringed, and jury trials over music copyright can be especially unpredictable.
Here is a guide to what to expect during the trial.
What do the songs sound like?
The lawsuit against Sheeran involves only the underlying musical composition of the two songs — their melodies, chords and lyrics — and not the specific recordings.
Listen to Sheeran’s “Thinking Out Loud.”
Listen to Gaye’s “Let’s Get It On.”
Who are the plaintiffs?
While the “Blurred Lines” suit was filed by Gaye’s family, the plaintiffs in this case are heirs of Ed Townsend, a songwriter and producer who collaborated with Gaye on his album “Let’s Get It On,” and who shares writing credit with Gaye on the title track. (Townsend, who died in 2003, was the primary songwriter of “Let’s Get It On,” earning two-thirds of the royalties from it.)
Why has it taken so long to come to trial?
The case was filed in 2017 by Townsend’s daughter, Kathryn Townsend Griffin; his sister, Helen McDonald; and the estate of his former wife, Cherrigale Townsend. Since then there have been a series of delays.
In 2019, the judge overseeing the case, Louis L. Stanton, put the trial on hold pending an appeal in the “Stairway to Heaven” case, which involved similar questions about what aspects of a song were properly protected by copyright. Just after that appeal was resolved, in March 2020, the coronavirus pandemic was growing serious, forcing another postponement of the “Thinking Out Loud” case.
For much of the last year, lawyers for the two sides have been sparring in pretrial paperwork over what evidence can be presented at trial.
What parts of the songs are in dispute?
A quirk of the law restricts which aspects of “Let’s Get It On” (1973) are under copyright. For many songs made before 1978, only the contents of the sheet music submitted to the Copyright Office (known as the “deposit copy”) are protected. With “Let’s Get It On,” that notation was skeletal: just chords, lyrics and a vocal melody. Other key aspects of the song, like its bass line and signature opening guitar riff, were absent.
That means that the lawsuit primarily comes down to the chord progressions of the two songs, which are nearly — but not entirely — identical.
Both songs are based on a sequence of four chords in an ascending pattern, but on “Thinking Out Loud” the second chord in the progression is slightly different from the one used in “Let’s Get It On.” (A musicologist retained by the plaintiffs acknowledged the difference in an analysis submitted to the court, but called the two chords “virtually interchangeable.”)
The case may hinge on just how distinctive this chord progression is. Sheeran’s lawyers argue that the chords are generic building blocks and are fair game for any musician. In filings with the court, Sheeran’s musicologist notes more than a dozen songs, including hits like the Seekers’ “Georgy Girl” and Donovan’s “Hurdy Gurdy Man,” used the same basic sequence before “Let’s Get It On.” A guitar textbook submitted in evidence cites it as a standard progression that can be used by any musician to write a song.
The plaintiffs argue that even if the chords are public domain, the specific way they were used in “Let’s Get It On,” including the song’s syncopated rhythmic pattern, is original enough in its “selection and arrangement” of those elements to be protected by copyright.
What are the stakes?
After the “Blurred Lines” verdict, musicians and legal scholars expressed concerns that the case had muddied the commonly understood rules about what aspects of music could be owned by an individual songwriter, and what were free for any musician to use. There was an uptick in music copyright claims, and some songwriters reported second-guessing themselves in the studio to make sure their compositions were distinct.
The Led Zeppelin case changed that trajectory, with its ruling that some elements of creative works were so commonplace that only “virtually identical” versions infringed on copyright. Some experts say they are worried that if Sheeran loses, further disruption could ensue.
“If in this case an extremely common chord progression, set to a basic harmonic rhythm, is privatized,” said Jennifer Jenkins, a law professor at Duke who specializes in music copyright, “then we are going in reverse, and we are removing essential ingredients from every songwriter’s tool kit.”
Townsend’s heirs say they are protecting his work against another song that stole its musical “heart.”
What other cases involve these two songs?
The case, known as Griffin v. Sheeran, is one of three in the Southern District of New York involving accusations of copyright infringement over “Thinking Out Loud” and “Let’s Get It On.”
The two others were filed by Structured Asset Sales, a company that owns an 11.11 percent interest in “Let’s Get It On,” having purchased a share of rights that was owned by one of Townsend’s sons. Structured Assets Sales is owned by David Pullman, a businessman best known for creating the so-called Bowie bonds for David Bowie in the 1990s.
Of those two cases, one may be headed for a separate trial, while the other has been stayed pending a resolution of the first.
Has Sheeran faced copyright cases before?
Yes. In 2016, the two songwriters of “Amazing,” which was performed by Matt Cardle, a winner of the British TV competition “The X Factor,” sued Sheeran, saying he copied aspects of their song for his hit “Photograph.” The case was settled a year later, and the writers of “Amazing” were added to the credits of “Photograph.”
Last year, Sheeran successfully defended himself at trial in Britain in an infringement case involving another of his hits, “Shape of You.” Afterward, Sheeran spoke in personal terms about the toll of defending against such accusations, and said that the flood of recent cases was “really damaging to the songwriting industry.”
“There’s only so many notes and very few chords used in pop music,” Sheeran said, in a video posted to Instagram. “Coincidence is bound to happen if 60,000 are being released every day on Spotify.”
He added, “This really does have to end.”
