A closely watched music copyright trial opened Monday in Manhattan federal court with a jury selection that will decide a lawsuit accusing Ed Sheeran of copying his Grammy-winning song “Thinking Out Loud” from Marvin Gaye’s classic “Let’s Get It On.” “
Sheeran is expected to testify at the trial, which is taking place less than two weeks before he plans to release a new album and embark on an extensive North American stadium tour. The case, which was originally filed in 2017, has been delayed several times.
The music industry is deeply interested in the score. Over the past decade, the company has been hit by a series of infringement lawsuits that have involved questions about how little or how little pop songwriters’ work can be protected by copyright, and the extent to which they are subject to legal challenges.
The trend began in 2015 when a jury found that Robin Thicke and Pharrell Williams, on their song “Blurred Lines,” had infringed the copyright of another Gaye tune, “Got to Give It Up,” and ordered them to pay more than $5 million in damages. The case shocked many legal experts—and musicians—who believed Thicke and Williams were penalized for using basic musical building blocks, such as harmony and rhythmic patterns, that had long been considered part of the public domain.
In 2020, an appeals court decision confirming Led Zeppelin’s victory over a copyright challenge to its song “Stairway to Heaven” seemed to throw case law back into more familiar territory. But plaintiffs are free to seek relief if they feel their rights have been infringed, and jury trials for music copyright can be particularly 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 basic musical composition of the two songs—their melodies, chords, and lyrics—and not the specific recordings.
Listen to Sheeran “Thinking out loud.”
Listen to “Gay”Let’s go.“
Who are the plaintiffs?
While “Blurred Lines” was sued by Gaye’s family, the plaintiffs in this case are the heirs of Ed Townsend, the songwriter and producer who collaborated with Gaye on his album “Let’s Get It On,” and which stars Gaye on the title track. (Townsend, who died in 2003, was the primary songwriter for “Let’s Get It On,” receiving two-thirds of the royalties from her.)
Why did it take so long for the trial?
The case was brought in 2017 by Townsend’s daughter, Katherine Townsend Griffin. his sister, Helen MacDonald; and the estate of his ex-wife Sherigal Townsend. Since then there have been a series of delays.
In 2019, the judge overseeing the case, Louis L. Stanton, stayed the trial pending appeal in the “Stairway to Heaven” case, which involved similar questions about aspects of the song properly protected by copyright. Immediately after the resolution of this appeal, in March 2020, the coronavirus pandemic was worsening, resulting in yet another postponement of the “Thinking Out Loud” issue.
For most of the past year, attorneys for both sides have been arguing in pretrial papers about what evidence can be presented at trial.
What parts of the songs are in dispute?
There is an anomaly in the law that restricts which aspects of “Let’s Get It On” (1973) are subject to copyright. For many songs produced 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 structural: just chords, words, and a vocal melody. Other key aspects of the song, such as the bass line and opening guitar riff, are absent.
This means that the lawsuit is primarily due to the chord progressions in the two songs, which are nearly identical—but not entirely.
Both songs are based on a sequence of four chords in an ascending pattern, but on “Thinking Out Loud”, the second chord progression is slightly different from that used on “Let’s Get It On”. (One musicologist hired by the plaintiffs acknowledged the difference in the analysis submitted to the court, but called the two chords “virtually interchangeable”).
The issue may depend on how distinct that chord is. Sheeran’s lawyers argue that chords are generic building blocks and are fair game for any musician. In court filings, Sheeran’s musicologist noted more than a dozen songs, including hits like Donovan’s “Georgy Girl” and “Hurdy Gurdy Man,” that used the same basic sequence before “Let’s Get It On.” The guitar textbook provided as a guide 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 were in the public domain, the specific method that was 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 risks?
After the “Blurred Lines” ruling, musicians and legal scholars expressed concerns that the case had distorted the generally understood rules about what aspects of music an individual songwriter could own, and what was free for any musician to use. There has been a rise in music copyright claims, and some songwriters have reported second-guessing themselves in the studio to make sure their compositions are unique.
The Led Zeppelin case changed that course, with its ruling that some elements of creative works were so popular that only “nearly identical” copies infringed copyright. Some experts say they worry that if Sheeran loses, more turmoil could ensue.
If the chord progression so common in this case, tuned to the basic harmonic beat, is privatized, Jennifer Jenkins, a Duke University law professor who specializes in music copyright, “is one of the components of every songwriter’s toolkit.”
Townsend’s heirs say they are protecting his work against another song that stole her musical “heart”.
What other cases involve these two songs?
The case, known as Griffin v. Sheeran, is one of three cases in the Southern District of New York involving accusations of copyright infringement regarding “Thinking Out Loud” and “Let’s Get It On”.
The other two companies were raised by Structured Asset Sales, a company that owns an 11.11 percent interest in “Let’s Get It On,” after it bought a share of the rights that had been owned by one of Townsend’s sons. David Pullman, the entrepreneur known for creating the so-called Bowie bonds David Bowie in the 90s.
Of these two cases, one may be transferred to a separate trial, while the other is suspended pending resolution of the first case.
Has Sheeran faced copyright issues before?
Yes. In 2016, the two songwriters on the song “Amazing,” which was featured by Matt Cardle, winner of British television competition “The X Factor,” sued Sheeran, saying he had copied aspects of their song for his “video” single. The case was settled a year later, and the “Amazing” authors were added to the “Photography” credits.
Last year, Sheeran successfully defended himself in a trial in Britain in an infringement case involving another of his songs, “Shape of You”. Then, speaking in personal terms about the cost of defending against such charges, Sheeran said the recent flood of cases is “really hurting the songwriting industry”.
“There are too many notes and too few chords used in pop music,” Sheeran said in a video posted to the site. Instagram. “It must happen if 60,000 people are released every day on Spotify.”
“This really has to end,” he added.
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