By Daisy Yang

Introduction

In the last decade, the music industry has been battling a surge of copyright claims that have given rise to a complicated double-edged sword. Artists require copyright law to protect their works, yet they are equally vulnerable to legal challenges, some of which seem driven by nothing more than greed and opportunism. This leads us to our present issue. Greed, legal battles, and the future of music – what on Earth do these three things have in common with Ed Sheeran? Well, recently, one such copyright case involved the late producer Ed Townsend’s estate and the accusations made against the English singer and songwriter Ed Sheeran. Greed has decimated the formerly flourishing but admittedly flawed ecosystem of the music industry. This legal battle has raised important questions about the nature of music copyright, its potential consequences for the creative process and the industry’s future.

Music Copyright Overview

Music copyright law is a complex and often contentious area. It revolves around the question of what constitutes the core of a song - the musical structure, the melody, or the lyrics. A peculiar aspect of the law imposes limitations on the copyright protection of certain elements in the song "Let's Get It On" (1973). In the case of many songs created prior to 1978, only the specific contents of the sheet music submitted to the Copyright Office, known as the "deposit copy," are granted protection. In the case of "Let's Get It On," this deposit copy consisted of skeletal notation, encompassing chords, lyrics, and a vocal melody. Notably, other significant components of the track, such as the bass line and the distinctive opening guitar riff, were not included. As a result, the lawsuit primarily revolved around the comparison of the chord progressions between the two songs, which exhibit remarkable similarity but are not entirely identical.

Background Context

It would be an injustice to examine this case without giving some context to the surge of music copyright infringement claims and Sheeran’s experience with it in the past decade.

In 2015, a jury determined that Robin Thicke and Pharrell Williams's "Blurred Lines" infringed on the copyright of Marvin Gaye's "Got to Give It Up". The jury awarded over $5.3 million in damages to Gaye's family. This verdict set a precedent and emboldened other copyright holders to pursue similar claims against popular artists.

In 2017, Ed Sheeran settled out of court over claims that his song "Photograph" was a "note-for-note" copy of the chorus in the song "Amazing" by X Factor UK winner Matt Cardle. Sheeran later expressed regret over the decision to settle, stating that it was done on the advice of his lawyers, who believed the case was "more trouble than it was worth”. He felt that settling the claim not only changed his relationship with the song but also opened the floodgates for future claims, including the subsequent "Shape of You" lawsuit.

Introduction to Structured Assets v Sheeran

In 2018, the estate and heirs of the late producer Ed Townsend, who collaborated with Marvin Gaye in co-writing the renowned song "Let's Get It On," filed legal action against Ed Sheeran, Sony/ATV Music Publishing, and Atlantic Records. Townsend accused Sheeran of copying parts of the song from Gaye’s classic hit in Sheeran’s 2014 hit "Thinking Out Loud".  

Sheeran vehemently denied knowingly copying the song and argued that many pop songs could fit over others due to the inherent similarities in chord progressions. While the verses of the two songs do share similarities, the choruses, tones, moods, and lyrical content are different. Ultimately, on the 4th of May 2023, the jury found Ed Sheeran not liable for copyright infringement.

Problem: The Normalisation of Frivolous, Greed-Driven Lawsuits

The problem lies in the growing normalisation of frivolous, greed-driven lawsuits in the music industry. Claims like these have become all too common, creating a culture where a claim is made with the expectation that the defendant will settle as it would be cheaper than taking the case to court, regardless of the merit of the claim itself. This trend has serious implications for creativity and the future of music.

The case presented by the Estate against Sheeran is a stark example of the cynical and opportunistic nature of some copyright claims. The lawsuit alleged that Sheeran copied a set of chords from Marvin Gaye's "Let's Get It On" in his song "Thinking Out Loud." While the chord progression does exhibit similarities, it is crucial to recognise that chord progressions are fundamental building blocks in music composition and are not subject to copyright protection.

Music, like other art forms, relies on inspiration, reinterpretation, and the exploration of existing ideas. Musicians draw inspiration from various sources, building upon the legacy of their predecessors while adding their unique perspectives and voices. To suggest that artists can be held liable for unintentional similarities in chord progressions restricts the creative freedom and innovation that has driven the evolution of music throughout history. Furthermore, the notion of copyrighting any specific chord progression, let alone one as common as the one used in "Let's Get It On," defies logic. Chord progressions are not unique or proprietary to any specific song or artist. There are thousands of instances of those chords played in that order that predates "Let's Get It On," including several popular songs cited by Sheeran's legal team. Such chord progressions are part of the collective consciousness of musicians and should remain in the public domain.

Allowing these frivolous and greed-driven copyright claims, especially those based on chord progressions, is a grotesque step toward madness. Had Sheeran lost the case, it would only have set a precedence that would further embolden ill-motivated and litigious individuals to impose upon artists the burden of proving the impossible: that they were devoid of any conscious or subconscious inspiration from another piece of music. Further, it would have made similar chord progressions a suable offence, whereby artists are compelled to bear the financial burden. This would stifle creativity, discourage innovation, and introduce a level of legal uncertainty that could have a chilling effect on the music industry as a whole. Sheeran, as an artist, has been vocal about his concerns regarding the rise in these types of lawsuits. Further, his attorney warned that accusations alone could make songwriters cautious, potentially impacting their creativity and ability to push artistic boundaries. The fear of legal repercussions for unintentional similarities in chord progressions could lead to self-censorship and a decline in the exploration of new musical ideas.

Conclusion

The legal battle between Ed Sheeran and the estate of Ed Townsend raises important questions about the nature of music copyright and its potential consequences for the creative process and the future of the industry. Allowing copyright claims based on chord progressions would restrict artistic freedom, discourage innovation, and undermine the fundamental principles of music creation. If the verdict was upheld, music industry professionals would be thrust into a position in which they would always have to with one foot in the recording studio and one foot in the courtroom. Therefore, it is essential to protect the integrity of copyright law while preserving the vibrant and dynamic nature of music as an art form.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured Image Source: Peakpx