Ed Sheeran on trial: fair inspiration or blatant plagiarism?
Just a year after he triumphed in the UK’s High Court over Shape of You, Ed Sheeran has once again been stung with a copyright lawsuit—this time in the US.
Sheeran’s 2014 Grammy-winning Thinking Out Loud, which he co-wrote with singer Amy Wadge, is under fire for allegedly pilfering elements of Marvin Gaye’s 1973 hit Let’s Get It On.
Gaye co-wrote Let’s Get It On with the late Eric Townsend, who received two-thirds of the royalties from the song. Now, Townsend’s heirs—including his daughter Kathyrn Griffin, her sister Helen McDonald, and the estate of Townsend’s former wife, Cherrigale Townsend—have summoned Sheeran to court in New York.
The plaintiffs first sued Sheeran in 2017, but delays meant the case has only just been brought to jury trial, after 95-year-old Judge Louis Stanton denied Sheeran’s attempts to have the case dismissed.
Stanton held that a jury must decide whether both songs are substantially similar, commenting that there is “no bright-line rule” for deciding such a question.
Four-chord fight
In the case against Sheeran, Griffin and her co-heirs claim that Sheeran’s song copies the melodic, harmonic, and rhythmic compositions of Let’s Get It On, by using the same ascending four-chord progression.
The trial began in New York on Tuesday, April 25, and Sheeran—who appeared in person to testify yesterday, Wednesday 26—denies the allegation.
In court, Sheeran’s lawyer Ilene Farkas said that the plaintiffs “cannot own these common musical elements…No one owns basic musical building blocks.”
Both parties have hired musicologists to provide evidence. The plaintiffs’ musicologist described the chords in the two songs as “virtually interchangeable” while acknowledging they are slightly different.
In contrast, Sheeran’s musicologist argues that the chord sequence is not unique, and cites numerous other examples of its use in songs by artists such as Donovan and the Seekers.
Ben Crump, a civil rights lawyer who acted for George Floyd’s family, is representing the plaintiffs. In court, he presented a video of Sheeran performing a live mashup of Thinking Out Loud with Let’s Get It On, saying it amounted to “a confession” of plagiarism and called the video a “smoking gun”.
In response, Sheeran argued: “Most pop songs can fit over most pop songs…You could go from Let it Be to No Woman, No Cry and switch back,” referencing The Beatles and Bob Marley.
‘Baseless’ claims
Sheeran is no stranger to such claims. In 2017 he settled out of court over claims that his song Photograph copied the chorus of Matt Cardle’s Amazing.
In the Shape of You suit, he was accused of infringing elements of Sami Chokri and Ross O’Donoghue’s song Oh Why.
After successfully defending the claim, Sheeran posted a video on social media. He said that “claims like this are way too common now”, and that a culture had developed in which “a claim is made with the idea that settlement will be cheaper than taking it to court, even if there's no basis for the claim.”
“It's really damaging to the songwriting industry,” he continued. “There's only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That's 22 million songs a year, and there's only 12 notes that are available.”
He added that he hoped the ruling would prevent such “baseless” claims. “This really does have to end.”
Too many lawsuits?
That wish did not come true for Sheeran, but—as he suggests—are there too many copyright infringement cases against musicians?
Phil Sherrell, partner in the Media & IP division at Bird & Bird in London, told WIPR that it goes with the job.
“The UK music industry is a huge global success story and as with any big business, the occasional dispute is part of the territory.
“In the UK at least, it remains exceptionally rare for a copyright infringement case against a songwriter to get to trial.”
Greenspoon Marder partner Aliya Nelson adds that the history of copyright infringement and artists historically “being taken advantage of” provides helpful context.
With that in mind, “one cannot complain about a plaintiff asserting what they believe are valuable rights and claims of ownership,” she says.
“It is the job of the courts to determine if a lawsuit goes forth on its merits. I am certain that if Mr Sheeran found himself the victim of infringement, he would not want his ability to enforce his rights limited on any basis.”
But has Ed Sheeran in particular become a target?
Nelson doesn’t necessarily believe so and echoes Sherrell’s belief that it goes with the territory.
“Litigation in and around intellectual property rights is a byproduct of popularity and success,” she says. “It is an unfortunate rite of passage for most immensely successful artists.”
Inspiration vs originality
Sheeran’s point about the limited number of musical notes available may be a valid one, according to one prominent academic.
Hayleigh Bosher, senior lecturer in intellectual property law at Brunel University, London, believes these kinds of cases “do have a stifling effect on creativity”.
“People worry about being sued when they haven't consciously or deliberately copied,” she said, speaking on BBC Radio 5 Live about the lawsuit. “And sometimes it's a fine balance. You want to protect people's assets when they've made a song and they should be licensed when it's copied.
“But at the same time, you don't want to over-protect. You want people to be able to use common elements in music making, otherwise, you're stifling that creative process.”
She concedes that there are similarities between the two songs at issue. But she noted that in copyright, it’s a question of distinguishing between original and commonplace elements within those similar elements.
“And some of the parts that are the same are parts that are even in textbooks about how to play music…that's how commonplace they are,” she says.
“So the case will come down to that—not ‘do they sound the same’, but ‘are the parts that are the same original parts or not?’”
In light of this, are amendments to copyright law in order (in the US, in this case) to allow for musicians to have more creative freedom?
Nelson doesn’t believe there is a need to amend current copyright law to allow for creativity, as statute and case law adjusts for derivative works and interpolation, she notes.
“If anything, I believe there should be an expansion of the statute of limitations and adjustments to enforcement based on discovery of infringement and the ability of heirs to enforce the rights of the estates of valuable catalogue holders.”
Sherrell highlights that the distinction between inspiration and originality has become more crucial than ever.
“Music copyright has always struggled to work out where to draw the blurred line between legitimate inspiration being taken from earlier works, and illegitimate copying.
“That struggle is rapidly becoming more important, with the increasing capacity of generative AI tools to create large volumes of new works.
“But if Sheeran can show that any similarities were merely coincidence then he should prevail, as the plaintiffs will need to establish copying in order to win.”
While Gaye’s estate is not involved in this case, it’s not the first time that his songs have been at the heart of a lawsuit. In 2018, singer-songwriters Robin Thicke and Pharrell Williams were ordered to pay Marvin Gaye’s family $5 million because their song Blurred Lines infringed the copyright of Gaye’s Got to Give It Up.
Griffin et al v Sheeran et al is one of three cases brought by different parts of Townsend’s estate, with two currently on hold.
WIPR has contacted counsel for each party, without immediate response.
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