A federal jury in Manhattan found last week that British popstar Ed Sheeran’s song “Thinking Out Loud” did not infringe any copyright of Marvin Gaye’s 1973 hit “Let’s Get It On.”
Gaye, deceased, was not the plaintiff in the lawsuit. Structured Asset Sales, owned by an investment banker and partial owner of Gaye’s work, brought the lawsuit alongside Gaye’s estate. They accused Sheeran of violating their copyright because Sheeran’s Thinking Out Loud bore “striking similarities” and “overt common elements” with Gaye’s song.
Proving copyright infringement involving music is often circumstantial and fact intensive. A copyright plaintiff must prove (1) ownership of the copyright and (2) infringement. For infringement, the plaintiff must prove the defendant copied protected elements of the plaintiff’s work. Elements that can constitute infringement include using significant portions of the original composition, copying melody or lyrics, reproducing a portion of the song, or creating a derivative work without consent.
The jury heard testimony from musicologists (music experts) in considering whether the combination of chord progression and harmonic rhythm in Gaye’s song was similar to that of Sheeran’s.
Interestingly, Sheeran took the witness stand in his own defense. Commentators note Sheeran was at times “contentious” as he explained he came up with Thinking Out Loud on his own. The plaintiffs played video footage showing Sheeran on stage segueing between Let’s Get it On and Thinking Out Loud. In response, Sheeran said “I’d be an idiot to stand on a stage in front of 20,000 people and do that.”
This case highlights an increase in copyright disputes concerning music. Sheeran’s camp distilled the fundamental issue that there is a finite number of chord progressions and building blocks, and it is inevitable that certain combinations are similar. But the similarity does not equate to copyright infringement, and certainly not intentional infringement. The jury agreed.
It is important to respect intellectual property rights and obtain proper licensing for musical works. Our team at Griffith Barbee is prepared to assist in prosecuting and defending copyright claims on behalf of creatives.
If you have a copyright infringement case, contact us to learn how we can help.