Ed Sheeran’s copyright battle sends shivers down music industry’s spine (video)

As 32 year old Ed Sheeran gears up for a blockbuster tour and album release, he also finds himself defending his songwriting abilities in Manhattan’s federal court amidst a closely monitored copyright case. The trial focuses on claims that the British pop star plagiarised Marvin Gaye’s 1973 soul classic, “Let’s Get It On,” in his 2014 hit, “Thinking Out Loud.”

The heirs of Ed Townsend, Gaye’s co-writer, filed the civil suit and asserted “striking similarities and overt common elements” between the two songs. The case is the latest in a series of high-profile music copyright claims that have left many songwriters feeling vulnerable and concerned about their own creative processes.

Sheeran has spent several days testifying with his guitar in hand, playing demos for the court to illustrate that the 1-3-4-5 chord progression in question is a basic building block of pop music that cannot be owned. His legal team argues that Gaye and Townsend were not the first to record the progression and cites several Van Morrison songs that contain the sequence and predate “Let’s Get It On.”

Forensic musicologist Joe Bennett expressed his frustration with the situation, stating…

“The world I want to live in is one where nobody sues anyone for a one- or two-bar melodic or harmonic similarity because those similarities can so easily occur through coincidence.”

He adds that such similarities “shouldn’t be protectable by copyright.”

The case relies on the actual composition of the songs, rather than the recorded versions. In theory, this specificity could work in Sheeran’s favour. However, once a music copyright suit advances to a jury trial, outcomes can be unpredictable.

Winning in such cases requires significant funding and resources, and defendants are subject to the unpredictability of jury members’ opinions. Both sides have employed expert witnesses to elucidate the technical details, yet their conclusions vary significantly. Bennett added…

“If you play music to a jury, it could go either way.”

There have been several landmark music copyright cases in recent years, including the 2016 case in which Gaye’s family successfully sued Robin Thicke and Pharrell Williams over the song “Blurred Lines” and its similarity to Gaye’s “Got to Give it Up.” The outcome surprised industry professionals and legal experts, many of whom considered the cited musical elements foundational and primarily existing in the public domain.

Joseph Fishman, a law professor specialising in intellectual property at Vanderbilt University, believes that the outcome of Sheeran’s case could have a considerable impact on the industry.

“If it’s going back and forth, that could still have a chilling effect on how songwriters write because you never know — is my case going to be the one?”

Unintentional infringement can be a weak defence, as demonstrated when George Harrison was found liable for “subconsciously” plagiarising “He’s So Fine” by the Chiffons for his hit “My Sweet Lord” in 1976. Harrison later wrote in his memoir about the “paranoia about songwriting” that had grown within him.

This week, Sheeran spoke of fellow songwriters who have expressed their support, telling him…

“You have to win this for us.”

He also admitted that if the Townsend estate wins, he would feel defeated

“I find it really insulting to work my whole life… and have someone diminish it by saying that I stole it.”

Many of Berklee College of Music’s students have voiced their concerns over the case, anxious about its potential impact on their futures as the next generation of songwriters.

Mary Jo Swank, a 21 year old student, fears that the concept of being entirely original and unique could jeopardise the emotional and creative processes of songwriting, stating…

“It’d be nice if I’d be allowed to write my take on a 1-3-4-5 progression without having to worry that it’s not unique enough.”