Thinking Out Loud?... Or Rather, Playing Out Loud?
On May 4, 2023, Grammy Award-winning artist, Ed Sheeran won a lawsuit accusing him copyright infringement by using the rhythm and chord progression of Marvin Gaye’s famous 1973 hit “Let’s Get It On” in one of his songs. This lawsuit was originally filed in 2017 by the heirs of the late Ed Townsend, the co-author of Gaye’s song, claiming that Sheeran, and his record label Warner Music Group, and his music publisher Sony Music Publishing had infringed on their copyright interest in the Gaye song.
To support the claim of infringement, lawyers for the plaintiff relied on video evidence of Ed Sheeran’s ability to move effortlessly between his hit ballad “Thinking Out Loud” and Gaye’s famous song “Let’s Get It On.” To disprove allegations of copying, Sheeran emphasized to the jury that his song was in fact his own creative work (and not a copy of Gaye’s song) by testifying that his hit song is based on his own experiences. In addition, Sheeran’s musicologist told jurors that he found 80 songs containing the same chord progression as “Let’s Get it On,” with 33 coming before Gaye’s song was released. To illustrate this to the jury, Sheeran played his guitar in the courtroom to demonstrate how similar the basic chord sequence sounds in numerous famous songs. According to Sheeran and his expert witness, similar chord progressions and harmonic rhythms between the songs are unoriginal and commonplace musical elements that are not subject to copyright protection.
The presiding judge reminded the jury that independent creation is an absolute defense to copyright infringement. After only a few hours of deliberation, the jury unanimously found in favor of Ed Sheeran. According to Sheeran, these cords are “common building blocks” that are “in songwriters’ alphabet, our toolkit, and should be there for all of use to use.” Further, he stated “no one owns them, or the way they are played, in the same way no one owns the color blue.” This case serves as a reminder that the use of similar chord progressions is likely not sufficient to establish copyright infringement.
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