By Adam Behr
Ed Sheeran came out swinging in his statement after a New York court found in his favour last week over a claim that his 2014 song Thinking Out Loud infringed copyright in Marvin Gaye’s hit Let’s Get It On. He called suits like the one brought by the estate of Gaye’s co-writer Ed Townshend “baseless” and pointed to the wider ramifications of the verdict:
I am not and will never allow myself to be a piggy bank for anyone to shake … I want to thank the jury for making a decision that will help to protect the creative process of songwriters here in the United States and around the world … These claims need to be stopped so that the creative process can carry on, and we can all just go back to making music.
It wasn’t his first time facing such charges, copyright suits being a common professional hazard. As the old industry maxim states, where there’s a hit, there’s a writ. So why did Sheeran allude to benefits for songwriters at large from this verdict?
A multifaceted legal mechanism
Copyright is complex, with numerous points of potential dispute across different aspects of the musical work in question. First, it is not a single, indivisible legal mechanism. There is copyright in the underlying work – the composition – and copyright in the recording of that work.
Where a song has been sampled without permission, for example, the recording copyright has been infringed. When Sean Coombs failed to secure clearance for a sample from The Police’s Every Breath You Take in I’ll Be Missing You, he ceded royalties to Sting.
The relationship between composition and its realisation in recording has also been contentious, especially for songs put together in the studio by bands, where verbal agreements between the members come into play.
Members of Spandau Ballet argued that contributions like vocal delivery and saxophone solos merited a portion of songwriter Gary Kemp’s royalties. They were unsuccessful, although Mike Joyce and Andy Rourke, former drummer and bassist in The Smiths, claimed and won a greater share of the songwriting spoils from Morrissey and guitarist Johnny Marr.
Intra-band disputes, however, don’t speak to the purpose of copyright in the same way as plagiarism suits. At issue for Sheeran was what counts as protectible under copyright.
Lyrics and melody have traditionally been the core musical features that enjoyed copyright protection. So when session singer Clare Torry won an out-of-court settlement from Pink Floyd over her vocal improvisation on The Great Gig in the Sky, her claim pertained to the “top-line melody” being her creation.
Likewise, George Harrison’s My Sweet Lord was found in 1976 to have infringed The Chiffons’ He’s So Fine, because there was a substantive passage in both songs where the melody was the same, and Harrison could viably be claimed to have been aware of the prior song. It wasn’t even deemed necessary for the copying to have been deliberate – the court acknowledged that plagiarism took place “even though subconsciously accomplished”.
Protecting past originality and future creativity
The purpose of identifying copyrightable features of compositions is to incentivise creators, allowing them to profit from their originality.
Simultaneously, though, copyright was designed to benefit society by facilitating a common creative culture through a body of work in the public domain that others can draw on. This is why it is limited in both time (how long a work remains under copyright) and scope (the specific elements that are protected).
The “smoking gun” in the Sheeran case, according to the plaintiff’s legal team, was a live performance segueing between the songs and demonstrating a shared a I-iii-IV-V chord sequence.
Sheeran’s defence claimed that such chord sequences are not protectible but, rather, the common currency of songwriting. As he showed in court, and as widely illustrated by musical and comedy performances, innumerable songs share such chord sequences.
Given this shared musical language and the constraints of popular music, like genre conventions or song length, a degree of similarity doesn’t automatically imply plagiarism. What’s more, musicians learn by imitation and take inspiration from the huge body of work that precedes them.
The legal question, then, isn’t whether two songs are similar, but whether the resemblance can be shown to reside in protectible elements of the prior work, and to constitute a substantial enough part of both songs to fall outside of being common currency. Is it a protracted rather than just a fragmentary stretch of melody, for instance?
Copyright suits in US circuit courts can set precedent. Indeed, it was findings against hip-hop artists’ early use of samples in the 1980s and 1990s that defined the need to license such samples.
There are also debates about whether using juries of lay members of the public is the best way to decide complex copyright disputes, especially where the protected status of musical elements is unclear or counter-intuitive.
This was the case with Blurred Lines, where the song’s general feel and production were found to have breached copyright in another Marvin Gaye song, Got To Give It Up, despite a lack of melodic or lyrical overlap between them.
The risk is that lawsuits expand copyright’s remit, curtailing future creativity, especially for artists without deep pockets to sustain legal battles. This is why what was at stake in the Sheeran case was more than his artistic integrity or the musical distinctiveness of Let’s Get It On. Past originality is valuable and warrants protection, but so does the future, and the public domain.
This article was originally published in The Conversation on 11 May 2023. It can be accessed here: https://theconversation.com/what-ed-sheerans-copyright-court-case-win-means-for-songwriters-in-future-205354
About The Author
Adam Behr teaches and researches in the interdisciplinary field of Popular Music Studies, with an emphasis on the intersections between the creative industries, cultural policy, music and politics. He is also interested in the sociology and history of popular music and their relationship to the politics of popular culture.