Categories: Copyright Law

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Published May 18, 2023

Catherine Cavella, ESQ.

Takeaway No. 1: Similarity Alone Does Not Mean Infringement. 


Unless you have been living under a rock, you know a big copyright infringement case just wrapped up, with a jury verdict in favor of British pop star Ed Sheeran. The heirs of Marvin Gaye accused the pop star of copying the music (specifically the chords, rhythm, and melody) of the 1973 hit “Let’s Get It On” in his Grammy-winning song “Thinking Out Loud.” The jury disagreed, finding despite the songs’ similarities, Sheeran and his co-writer wrote their song independently, without unfairly copying any elements of the Marvin Gaye song. 


We are excited to share this 3-part article with you and our fellow musicians. It covers the nitty gritty of copyright law and explains in detail why the jury came to its final verdict, clearing Ed Sheeran of all copyright infringement accusations.


What can we learn from this case?


Being a musician myself, I had to start with listening to both songs back-to-back. The similarities? Both songs are romantic pop ballads of the Western music tradition. 


The technicalities: Music can be thought of as having melody (the part you sing along to), harmony (the chords, i.e., the part you strum on the guitar) and rhythm (the part you tap to or dance to, otherwise known as the beat). The verse of the Sheeran song uses the same basic chord progression (harmony) as the Gaye song, though I hear a slight difference in the second chord– I iii IV V in the Sheeran song and I I6 IV V in the Gaye song. In other words, transposing the Gaye song to the key of D the chords would be D, D/F#, G, A whereas the Sheeran song would be D, F#m, G, A. The rhythm is a typical R&B beat common to many pop ballads. Both the beat and the chord progression appear in numerous songs including Lionel Ritchie’s “Easy (Like Sunday Morning).” The chord progression has been used for centuries in Western music across numerous genres. 


If you are skeptical, here is an article about this chord progression piano – Theory behind I iii IV V – Music: Practice & Theory Stack Exchange . Additional reading:  Thinking Out Loud v. Let’s Get It On | Analysis – Popular Musicology Is a great introduction to the music theory explaining the similarities and differences in musical terms and why most musicians (I am guessing) would be as outraged as Sheeran at the idea that the similarities between his song and the 70’s hit amounted to unfair copying of the earlier song. 


Takeaway No. 1: Similarity Alone Does Not Mean Infringement. 


It depends on what is similar. Is it just the elements that are common to the genre? 


Copyright protects original creative expression. Expression = not the ideas themselves, but the expression of the ideas. Creative = some minimal amount of creativity is necessary for copyright to attach. An alphabetical listing of names or words lacks sufficient creativity to be protected by copyright. Original = not copied from some previous work. 


(Contrast trademark law, where originality matters not at all – what matters is similarity in the context of the market, i.e., in the eyes of the consumer.)


Copyright is infringed when the copyrightable aspects of a work are used by another without permission. That is called copying. Use by both authors of similar words and phrases is not automatically copyright infringement. Use of the same colors in visual art does not mean the copyright is infringed. Copyright does not attach to the building blocks that make up the work. It only attaches to the original creative expression.


In the end, the jury determined that Ed Sheeran’s song, “Thinking Out Loud,” was similar to Marvin Gaye’s song, “Let’s Get It On,” but did not infringe its copyrights. They found that Sheeran did not copy the Gaye song.


Stay tuned for Takeaway 2: Similarities common to the genre do not amount to copyright infringement (copying), which will be posted tomorrow and be available on IP WORKS LAW’s online educational section under BLOGS. 

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Since 1992, Catherine Cavella, Esq. Her focus on Trademark Law and Copyright Law for the last few decades gives her deep insights into the fundamental principles behind the rules. Catherine regularly writes about new developments in trademark law, copyright law, and internet law.