Thinking out loud

A jury in New York has decided that Ed Sheeran's Thinking Out Loud did not infringe the copyright in Marvin Gaye's classic hit Let's Get It On.

The copyright infringement case was filed back in 2017 (the cogs of the legal system turn slowly) by Kathryn Townsend-Griffin, the daughter and heir of Ed Townsend, who was Marvin Gaye's co-writer. The action cited not only Ed Sheeran but also his record label, Warner Music Group, and the music publisher, Sony Music Publishing. Townsend-Griffin said that she had brought the case to protect her father's legacy.

Ed Sheeran's reaction

Sheeran had lots to say after the verdict was handed down. He said that he was "obviously very happy with the outcome" and that he was grateful that he would not need to "retire" from his "day job". Yet, he was also "unbelievably frustrated that baseless claims like this are allowed to go to court at all."

For a musical superstar who has acquired great fame and wealth, Sheeran likes to come across as a regular bloke, describing himself as "just a guy with a guitar who loves writing music for people to enjoy". But, he added, he is not "a piggybank for anyone to shake". Sheeran had this warning: "If the jury had decided this matter the other way we might as well say goodbye to the creative freedom of songwriters."

Letters of the alphabets and building blocks

Sheeran's lawyer told the court that the similarities in chord progressions and rhythms in the two songs were "the letters of the alphabets of music....[the] basic musical building blocks that songwriters now and forever must be free to use, or all of us who love music will be poorer for it."

Townsend-Griffin's lawyer, however, said that there was no intention to monopolise basic musical elements but rather "the way in which these common elements were uniquely combined." The lawyer said that jurors should use their "common sense" to decide if there was infringement. The lawyer further warned jurors not to be star-struck, saying that "Mr Sheeran is counting on you to be very, very overwhelmed by his commercial success."

Copying – the clue's in the name

In order for there to be copyright infringement there must in fact be copying – copyright is not an absolute right like a patent. As the judge said to the jury: "Independent creation is a complete defence, no matter how similar that song is."

Sheeran and his co-writer, Amy Wadge, testified that they had not copied the song Let's Get It On - Sheeran told the court that he in fact had no more than a passing familiarity with it. He said that Thinking Out Loud had been inspired by Irish musician, Van Morrison, although he also said that he had been inspired to write the song by his grandparents, as well as a new romantic relationship he had begun. At the trial, a musical expert testified that the four-chord sequence in question had been used in a number of songs before Marvin Gaye's 1973 hit.

During the trial, Sheeran played parts of Thinking Out Loud in court, which must have provided some welcome relief from a bunch of boring lawyers going on about copyright law!

Musical copyright litigation is all the rage

There is quite a bit of musical copyright litigation. Ed Sheeran has faced infringement claims in UK courts about both Thinking out Loud and Shape of You. In 2015, Marvin Gaye's heirs won a very high-profile copyright infringement case against Robin Thicke and Pharrell Williams relating to the song Blurred Lines.

These cases may be of great interest to the public but they are apparently hellish for the participants. Sheeran had this to say about the latest case: "These trials take a significant toll on everyone involved."

A few words about copyright law

It's worth making the point that when it comes to music, there may be separate copyrights involved, one in the musical work itself and another in the sound recording. It's also worth highlighting that there can only be copyright infringement where there is copying. An independent creation of something similar is not an infringement.

Many readers will know that the South African copyright legislation goes all the way back to 1978 and is in the process of a major overhaul, a process that has been controversial and somewhat fraught. But the fundamental aspects that are described in this article will remain the same.

Finally, the funny thing

The funny thing about IP law is that it can protect things as diverse as highly complex ground-breaking inventions that may save millions of lives, to a snippet of the most banal music, something that came to the creator whilst in the shower.

The funny thing about life is, most people are far more interested in the latter!

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