By Annabelle Timsit
Ed Sheeran took the stand for the first time this week to defend against allegations that he copied elements of Marvin Gaye’s 1973 hit "Let's Get It On" when producing his own 2014 hit song, "Thinking Out Loud".
Heirs of Gaye’s collaborator and "Let's Get It On" co-writer Eric Townsend sued Sheeran in 2017, alleging copyright infringement over similarities in the two songs’ chord progressions.
The trial has been delayed several times since, but as it gets under way in New York District Court, experts are watching for a ruling that could set a new copyright precedent in the entertainment industry.
A loss for Sheeran could expand the commonly understood boundaries of music copyright and mean more claims brought against popular artists who have built off existing songs to create something of their own, said Luke McDonagh, an assistant professor of law at the London School of Economics and Political Science.
“The stakes are quite high.“
Here’s what you need to know about the trial.
Why is Ed Sheeran in court?
Sheeran is in court because heirs of Eric Townsend, who largely wrote "Let's Get It On" and owned two-thirds of the royalties for the song when he died in 2003, are accusing the British artist of infringing on the copyright.
Townsend’s daughter, sister and the estate of his former wife claim in their complaint that Sheeran, in "Thinking Out Loud", copied important musical elements of "Let's Get It On" and unjustly profited from it. They are seeking unspecified damages.
Sheeran and his lawyers say it’s normal for songs of certain genres to have similarities, and that one artist cannot claim ownership over a commonplace musical element. They argue that the two songs are distinct.
What part of "Thinking Out Loud" do plaintiffs claim is copied from "Let's Get It On"?
Townsend’s heirs accuse Sheeran of copying “harmonic progressions, melodic and rhythmic elements” that are the “heart” of "Let's Get It On".
Because "Let's Get It On" was written before 1978, the sheet music – and not a sound recording – was submitted to the Copyright Office.
That meant only certain elements of the song were protected by copyright, said McDonagh.
The case mostly revolves around a chord progression that is found in "Let's Get It On" and "Thinking Out Loud" – but also, as Sheeran and his lawyers have argued, in many other pop songs.
Lawyers for the plaintiff played the court a video on Tuesday that shows Sheeran performing a medley of "Let's Get It On" and "Thinking Out Loud" at a concert.
The complaint claims that the video is evidence that Sheeran himself “acknowledged the musical import of Let's as a forebear and/or musical foundation for Thinking”.
In it, Sheeran “transitions seamlessly” between the two songs onstage.
But in court, Sheeran retorted that it was “quite simple to weave in and out of songs” that have similar musical elements, according to the Associated Press.
The jury would have to decide if the two songs are substantially similar and whether the elements they had in common were protected under copyright law, Sabine Jacques, an expert in music copyright at the University of East Anglia, said.
To establish copyright infringement, it was not enough to prove that the songs sounded similar, Jacques said: “The plaintiffs must establish that the defendant actually copied the plaintiff’s work.”
What has Sheeran said about the creation of “Thinking Out Loud”?
Sheeran says that he and his co-writer Amy Wadge did not copy Gaye’s song. He argues that many pop songs use the same chord progression he is accused of copying in "Thinking Out Loud".
“You could go from 'Let it Be' to 'No Woman, No Cry' and switch back,” Sheeran testified on Tuesday during the trial, according to Reuters.
“If I had done what you’re accusing me of doing, I’d be a quite an idiot to stand on a stage in front of 20 000 people and do that.”
More broadly, Sheeran has expressed frustration with the growing number of copyright-infringement claims brought against artists and called it “really damaging for the songwriting industry”.
“There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60 000 songs are being released every day on Spotify,” Sheeran said in a video last year after he won a trial in the UK over a separate copyright-infringement claim related to his 2017 hit, "Shape of You".
What have Townsend’s heirs said?
Kathryn Townsend Griffin, Townsend’s daughter, and a plaintiff in the lawsuit, spoke at the trial on Tuesday and defended her claim, though she said she had hoped it wouldn’t get to this point, according to the Associated Press.
“But I have to protect my father’s legacy,” she said. “I think Mr. Sheeran is a great artist with a great future,” she added.
The complaint lists her and the other plaintiffs as “engaged, among other things, in conducting the business of music publishing and otherwise commercially availing musical composition copyrights of the music of Mr Ed Townsend”.
Has Sheeran been accused of copying songs before?
Yes. In 2016, he and his collaborators were accused of copying the song "Amazing" by Matt Cardle, the winner of "The X Factor" competition show, in their 2014 hit song "Photograph".
Sheeran settled the case out of court for an unspecified sum.
In 2022, Sheeran won a case in the UK against two artists who accused him of copying the hook from their 2015 song "Oh Why" in "Shape of You".
The judge said there were “similarities between the 'OW (Oh Why) Hook' and the 'OI (Oh I) Phrase’” but that there were “also significant differences”, and concluded that Sheeran “did not subconsciously copy 'Oh Why' in creating 'Shape’”.
In the UK case, Sheeran had to convince only one judge, said McDonagh. In New York, he would have to convince a jury.
What other lessons can we learn from other copyright infringement cases?
The case has similarities with a 2015 legal dispute involving another of Gaye’s songs, "Got to Give It Up", said Hayleigh Bosher, a senior lecturer in intellectual property law at Brunel University London.
Watch video:
In that California case, artists Robin Thicke and Pharrell Williams were found to have infringed the copyright of "Got to Give It Up" in their controversial hit song, "Blurred Lines“.
The jury found that “the feel and vibes of the song” were copied, Bosher said, and Thicke and Williams were ordered to pay members of Gaye’s family more than $5 million in damages.
A judge also awarded them 50% of future royalties from "Blurred Lines".
The outcome shocked many experts and “seemed to change the game”, because the two songs’ melodies, lyrics and basslines were different, “but there was nonetheless a groove that was similar”, said McDonagh.
This more expansive understanding of music copyright set a precedent and caused a “marked increase” in copyright complaints against artists, he added.
Ever since, US courts have been trying to roll back that precedent, McDonagh said, with some artists accused of copyright-infringement winning on appeal.
But “if Ed Sheeran loses here, it could open that can of worms again”.
Separately, there was a 2016 ruling upheld in 2020 in which members of Led Zeppelin were cleared of copyright infringement for "Stairway to Heaven".
Bosher said that in that case, “the court specifically stated that a scale or commonplace chord sequence should not be protected by copyright”.
The question was whether the New York court would follow "the Blurred Lines or Stairway to Heaven approach" in ruling on the complaint against Sheeran, she said.
“If it is found to be infringing, we will continue to see cases like this escalating,” Bosher said, “but if it is not, then we may see a rebalancing of the scope of what copyright protects in music”.