You probably have heard Ed Sheeran’s name in the news recently. The English singer-songwriter was named in a copyright infringement case involving a Marvin Gaye song.
A jury decided that though the chord progressions between the songs are similar, the similarity didn’t constitute copyright infringement.
If you’re a songwriter, you’re probably wondering what is covered under copyright law and what isn’t – and how to avoid running into a situation like this.
In May 2023, a New York jury decided that singer/songwriter Ed Sheeran didn’t infringe on the classic Marvin Gaye song “Let’s Get It On” with his 2014 hit “Thinking Out Loud”, which won the English singer a GRAMMY.
The family of Ed Townsend, the late co-songwriter of “Let’s Get It On”, alleged in a 2017 lawsuit that Sheeran had taken the rhythm and chord progression from the song for “Thinking Out Loud”, which was released in 2014.
During the singer’s in-court testimony, Sheeran picked up a guitar and played both songs to demonstrate how similar they are. His lawyer said in her closing remarks that the shared characteristics of the songs were “basic to the tool kit of all songwriters” and “the scaffolding on which all songwriting is built.”
Sheeran had said that he would have “quit music” if he was found guilty of plagiarism during the trial.
According to the NYT, after the jury cleared him, Sheeran said in a statement that he was happy that he wouldn’t have to quit music, but expressed his frustration that the case, which was about a simple four-chord progression, happened in the first place.
“We have spent the last eight years talking about two songs with dramatically different lyrics, melodies and four chords which are also different and used by songwriters every day, all over the world,” he said.
He added that “These chords are common building blocks which were used to create music long before ‘Let’s Get It On’ was written and will be used to make music long after we are all gone.”
Here are some other cases involving copyright of songs:
In 2021, singer/songwriter Olivia Rodrigo gave songwriting credits to members of Paramore and Taylor Swift, Jack Antonoff, and St. Vincent for her songs “Good 4 U” and “1 Step Forward, 3 Steps Back” and “Deja Vu” after the songs had already been released.
In 2019, a jury decided that Katy Perry’s 2013 song “Dark Horse” sampled a six-note melody from Christian rapper Flame, awarding the rapper $2.78 million.
In 2015, a jury decided that Robin Thicke and Pharrell Williams had infringed on the copyright of another Marvin Gaye song, “Got To Give It Up” with their 2013 hit “Blurred Lines”. They had to pay the late singer’s estate $5.3 million.
The attorney who represented Gaye’s estate in that case, music attorney Richard Busch, told Variety that copyright infringement cases are proved two ways. First, the judge listens to expert testimony and decides if there are enough similarities between the works to take the case to a jury trial, and if there are, it goes before a jury trial, where members listen to the song to decide if they’re similar.
Judges and juries are generally not made up of musical experts, so many copyright cases following the “Blurred Lines case” are handled out of court.
What does the law say?
According to EasySong.com, parts of a song that are protected under copyright are lyrics and melody. (Sometimes artists will interpolate the words or melody of another well-known song in their work, usually with a song credit for the other song’s writers).
Harmony and chord progressions are generally not protected under copyright law – which is good, since most pop songs are built on simple chord progressions. Rhythm and structure of a song are generally not protected under copyright either.
If you’re wondering about copyright law, you can find the most up-to-date information on the U.S. Copyright laws here.