Ed Sheeran has been sued for $100 million over alleged similarities between his 2014 hit “Thinking Out Loud” and Marvin Gaye’s 1973 classic “Let’s Get It On.”
According to TMZ, the suit claims Sheeran’s song has the same “melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping as ‘Let’s Get it On.’” It was filed by Structured Asset Sales, which bought one third of the Gaye song’s copyright when its co-writer, Edward Townsend, died in 2003.
Additionally, Townsend’s heirs sued Sheeran in 2016 over the alleged copying.
Far be it from me or the site I write for to come to Ed Sheeran’s defense, but the cases seem flimsy and could have a chilling effect on popular music if money is rewarded to the plaintiffs. While there are instrumental similarities (though to my ear they’re not nearly as extensive as the Structured Asset Sales’ suit alleges, per TMZ’s reporting), it seems that the heart of the claim is the songs’ shared chord progression.
A few days after the 2016 lawsuit was filed, the Popular Musicology website ran a deep-dive comparative essay claiming that unlike in the case of “Photograph” (over which Sheeran was also sued and settled out of court), “this time Ed didn’t do anything wrong. This suit is ridiculous.”
The piece is detailed and heavy on music theory. The crux of its argument that when it comes to things like chord progression and groove:
...Nobody owns nor copyrights these basic building blocks! No more than an architect like Frank Gehry would ever copyright marble slabs, or even sculpted sheet metal, although he’s certainly particularly known for that. We understand that architecture will often have common beginnings, like a foundation, and will involve common materials that are aesthetically pleasing and functional. Music is similar. The intellectual property begins on a level beyond those common structures and basic materials that hold together songs, and buildings.
Many many many songs, in fact, share the chord progression at hand. The essay comes down to this:
Is “Thinking Out Loud” novel, unique and unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs lots of pleasing and clever but not unique “devices” within including the underlying chords and rhythms. That familiarity is unassailable. It’s the musical and lyrical stuff from which “hooks” are made and from which we get hit records. It’s arguably what we look for most in pop music. We look for and make hits of familiarity with a bit of a unique twist. This is why the law itself should not be compromised. Unless we want to kill popular music altogether, we should be throwing cases like this out.
This situation reminds me of another suit filed over a Marvin Gaye song: In 2015 his estate was awarded $7.3 million for the claim that Robin Thicke and Pharrell’s “Blurred Lines” ripped off Gaye’s “Got to Give It Up.” It’s in no way a defense of the rapey content of the former to say that the Gaye estate’s argument was even flimsier as the songs were substantially different besides arguably in instrumentation and groove. Writing about the decision for the Concourse, Michaelangelo Matos teased out potential implications for the future of pop music, which is a format full of references, associations, and sonic similarities:
The possibilities are endless—and many portend chilling things. Think of Bruno Mars alone: Might the Police sue over his solo smash “Locked Out of Heaven”? Would Norman Whitfield have a case against Cee Lo’s “Fuck You,” a Mars co-write? How about this year’s Mark Ronson No. 1 “Uptown Funk”—any number of post-disco funk bands might go for a piece of that one now, even though it bears a general resemblance to many and a close one to few.