CHORDS, COPYRIGHT AND CREATIVITY - THE ED SHEERAN V MARVIN GAYE CASE

By

Edgar Okitoi*

In the music industry and or popular music space, few issues are as complex and contentious as copyright infringement claims. The tension between protecting original creative works and allowing artistic freedom to build upon shared musical traditions is a delicate balance which the Law has struggled to find.

The lawsuit between Ed Sheeran and the estate of Marvin Gaye over the alleged copying of “Let’s Get It On” in Sheeran’s 2014 hit “Thinking Out Loud” crystallises this tension. This dispute, spanning several years and multiple courts, has become emblematic of the challenges in defining originality in music and the limits of copyright protection.

1.0  MARVIN GAYE’S “LET’S GET IT ON”

Marvin Gaye’s “Let’s Get It On” is widely regarded as one of the most iconic soul songs ever recorded being released in 1973 on the album of the same name, it marked a significant evolution in Gaye’s career, showcasing a more sensual and intimate style compared to his earlier socially conscious works. Co-written by Gaye and Ed Townsend, the song was conceived as a celebration of love and physical intimacy, which was widely considered Marvin Gaye’s style of music.

Musically, “Let’s Get It On” is characterised by its smooth, laid-back groove, lush instrumentation, and Gaye’s emotive and near-perfect vocal delivery. The song’s harmonic structure is notable for its distinctive chord progression, which creates a warm and inviting atmosphere, captivating the listener’s attention.

The rhythm section, featuring a steady drumbeat and bassline, anchors the song’s sensual feel, plus the melodic phrasing and vocal embellishments further enhance its emotional impact.

The song achieved both critical and commercial success, reaching number one on the Billboard R&B chart and number two on the Billboard Hot 100. It has since been covered, sampled, and referenced by numerous artists, cementing its place as a cornerstone of soul and R&B music.

2.0  ED SHEERAN’S “THINKING OUT LOUD”

Fast forward to 2014, Ed Sheeran released “Thinking Out Loud” as part of his second studio album. The song quickly became a global sensation, topping charts in multiple countries and winning prestigious awards. It is a romantic ballad that blends elements of pop, soul, and R&B, characterized by its fingerpicked acoustic guitar, heartfelt lyrics, and Sheeran’s warm vocal delivery.

This song evokes the style and mood of classic soul ballads, drawing inspiration from the genre’s rich tradition and the song’s chord progression, tempo, and melodic phrasing bear resemblance to earlier soul hits, including “Let’s Get It On” and its popularity and stylistic nods to classic soul music led to comparisons and, eventually, legal scrutiny.

3.0  THE LAWSUIT

The family of Ed Townsend, the co-writer of “Let’s Get It On” filed a lawsuit against Ed Sheeran, Amy Wadge (co-writer of “Thinking Out Loud”), and their publishers. The plaintiffs alleged that “Thinking Out Loud” copied the “heart” of “Let’s Get It On,” specifically pointing to similarities in harmonic progressions, melodic lines, and rhythmic elements. They claimed that Sheeran had access to “Let’s Get It On” and that the similarities were substantial enough to constitute copyright infringement.

3.1  COPYRIGHT LAW AND MUSIC

Understanding the legal principles underlying the case is of great importance in understanding how this case was decided because, essentially U.S. copyright law protects original works of authorship fixed in a tangible medium, including musical compositions and these protected elements include melodies, lyrics, harmonies, rhythms, and arrangements, provided they exhibit sufficient originality.

However, copyright does not protect common musical building blocks, that is, basic chord progressions, scales, rhythmic patterns, and short musical phrases that are ubiquitous in music and considered part of the public domain. Ideas and concepts are also not protected because copyright protects expression, not ideas, styles, or genres.

To establish infringement in this case, the plaintiffs had to prove that the defendants had access to their original work, that the protected elements of the work were copied by the defendant, and lastly, the defendant’s works were substantially similar to the protected elements.

Music copyright cases are notoriously challenging because many songs share similar chord progressions and rhythms and because of this fact, Courts have to rely heavily on expert testimony and musicological analysis to determine whether infringement occurred.

3.2  CHORD PROGRESSION AND HARMONIC STRUCTURE

At the core of the plaintiffs’ claim was the similarity in the chord progressions of the two songs in that both “Thinking Out Loud” and “Let’s Get It On” utilize a chord progression involving a similar sequence. This progression moves from the tonic (I) to the mediant (iii), then to the subdominant (IV), and finally to the dominant (V). The progression is common in popular music and has been used in countless songs across genres for decades. The plaintiffs argued that this progression, combined with the harmonic rhythm plus the rate at which chords change, was central to the

Defense experts thus emphasized, relying on that argument, that this chord progression and harmonic rhythm are fundamental building blocks of music and are not protectable by copyright. They demonstrated that these elements appear in numerous songs predating both “Let’s Get It On” and “Thinking Out Loud.”

3.3  MELODY AND VOCAL PHRASING

The plaintiffs highlighted similarities in the melodic phrasing and rhythmic delivery of the vocal lines, particularly in the verses. They argued that the contour that is, the shape of the melody, and the timing of certain notes were substantially similar.

However, defense experts countered saying, while some motifs might appear superficially similar, the melodies differ significantly in pitch intervals, rhythmic placement, and phrasing and that the melodic lines in “Thinking Out Loud” exhibit distinct variations and embellishments that differentiate them from those in “Let’s Get It On.”

3.4  RHYTHM AND GROOVE

Both songs share a slow tempo and a soulful groove that evoke a romantic mood and the rhythmic patterns of the drums and bass lines contribute to this feel. The plaintiffs therefore argued that the rhythmic similarities further supported their claim of copying.

The defence argued that the groove and rhythmic feel are stylistic elements common to the soul genre and do not constitute protectable expression. They noted that rhythm and groove are often shared across many songs within a genre.

The trial was held in the U.S. District Court for the Southern District of New York in early 2023 and lasted approximately two weeks. It attracted intense media coverage due to both Sheeran’s and Gaye’s celebrity and the case’s broader implications.

Sheeran testified extensively about his song writing process, emphasising independent creation and denying any copying. He described how “Thinking Out Loud” was inspired by classic soul music but was an original work. Sheeran also performed the song live in court to demonstrate its construction and originality, that must have been a wonderful court session!

Amy Wadge, co-writer of “Thinking Out Loud,” supported Sheeran’s account, describing their collaborative process and the development of the song’s melody and lyrics.

Both sides presented musicologists who analysed the musical similarities and differences. Plaintiffs’ experts argued that the harmonic progression, melodic phrasing, and rhythmic elements were substantially similar and protectable. Defence experts emphasized the commonality of these elements in music and highlighted the differences in melodic detail and expression.

Industry professionals provided context on common musical practices, the ubiquity of certain chord progressions, and the creative process in song writing.

In around May 2023, the jury ruled in favour of Ed Sheeran, finding that the similarities between the songs were limited to fundamental musical building blocks that are not protected by copyright. The jury concluded that there was no evidence that Sheeran copied protected elements of “Let’s Get It On,” and thus no infringement occurred.

Sheeran expressed relief and gratitude, stating he was “obviously very happy” and joking that he would not have to quit music, his day job, as he had threatened if he lost. The verdict was widely hailed as a victory for artistic freedom.

The plaintiffs appealed the verdict, seeking to overturn the jury’s decision. In 2024, the U.S. Court of Appeals for the Second Circuit upheld the original ruling, affirming that the shared musical elements were not protectable and that Sheeran did not infringe on the copyright.

The appellate court’s decision reinforced the principle that basic musical building blocks like chord progressions and rhythms are free for all artists to use. This ruling provided the much-needed clarity and stability to music copyright jurisprudence.

4.0  THE “BLURRED LINES” CASE

The 2015 “Blurred Lines” lawsuit involved Robin Thicke and Pharrell Williams, who were found liable for infringing on Marvin Gaye’s “Got To Give It Up.” Unlike the Sheeran case, the court ruled that the defendants had copied the “feel” and “vibe” of Gaye’s song, awarding millions in damages.

However, this verdict was controversial because it expanded copyright protection beyond specific melodies and lyrics to more abstract stylistic elements. That is why some critics argued it blurred the line between inspiration and infringement, threatening creativity by potentially criminalizing common musical styles.

The “Blurred Lines” case set a precedent that made artists wary of lawsuits over stylistic similarities, leading to increased litigation. The Sheeran ruling, by contrast, reigned in that expansive interpretation, emphasizing the need to protect only original expression and not generic musical building blocks.

5.0  IMPLICATIONS FOR ARTISTS, PRODUCERS, AND THE MUSIC INDUSTRY

For artists and songwriters, the Sheeran ruling offers reassurance that they can draw on common musical elements, that is, the ubiquitous elements that are used by almost the whole industry, without undue fear of litigation. It underscores the importance of documenting the creative process to show the independent creativity and inspiration from common progression, and understanding the limits of copyright protection.

Producers and record labels may adjust their risk assessments and contractual practices in light of this ruling. The case highlights the need for clear agreements regarding songwriting credits and royalties to avoid future disputes.

The lawsuit sparked broader conversations about the nature of musical creativity, the balance between homage and originality, and how music evolves through influence and borrowing. It thus raised awareness about the value of intellectual property while emphasizing the importance of preserving the shared musical language that fuels artistic innovation.

The Ed Sheeran and Marvin Gaye lawsuit illustrates the delicate balance copyright law must strike between protecting original works and fostering creativity that is not stifling musical competition. It clarifies that while originality deserves protection, the essential building blocks of music belong to the public domain.

As the music industry continues to evolve, especially in the digital age, this case will influence future disputes, legislative developments, and the ways artists and lawyers navigate the complex interplay between creativity and law.

The Ed Sheeran and Marvin Gaye copyright lawsuit was a landmark legal battle that tested the boundaries of musical copyright protection. After extensive examination, trial, and appeal, the courts found no infringement, emphasizing that the shared elements between “Thinking Out Loud” and “Let’s Get It On” were fundamental musical building blocks not subject to copyright and thus available for use by all musicians and artists.

This ruling stands as a significant precedent for the music industry, encouraging creativity while safeguarding intellectual property rights. It helps define the contours of originality in popular music and ensures that artists can continue to build upon the rich, shared heritage of musical expression.

* Director of Research, Lawpointuganda.