Ed Sheeran is being sued for Copyright Infringement claiming he copied his hit song Thinking Out Loud from Marvin Gaye’s Let’s Get It On. He is being sued by Heirs of Gaye’s co-writer, Ed Townsend, who argue that Sheeran, Warner Music Group and Sony Music Publishing owe them money for allegedly stealing the song.
The trial started this week. A key piece of evidence for plaintiff is concert footage recorded in Zurich showing Ed Sheeran mixing lyrics from Gaye’s song with Thinking Out Loud.
Ed Sheeran denies copying the song Sheeran. He said he sometimes mixes together songs with similar chords at his performances. Sheeran’s lawyer are arguing that both songs are distinct from each other and that no artist should be allowed to “monopolise” commonly used musical chord progressions.
Ed Sheeran was previously cleared at a trial in London of claims he copied his hit song Shape Of You. It will be interesting to see how the court decides this case. For more information check out: https://www.bbc.com/news/world-us-canada-65394202
Communications Law
https://www.youtube.com/watch?v=tpzLD-SAwW8&ab_channel=AdamNeely
Check out this video where Adam Neely talks about the case from a legal layperson perspective. Watching it gives you an idea of the distinction between your initial intuition that something seems copied based on similarity, and the kinds of things an expert might comment on in expert opinion.
In particular:
2:30: discussion of how the current iteration of pop genre’s musical/stylistic commonalities are a better explanation of the similarities than Sheeran’s reproduction of Marvin Gaye’s song. Obviously, the result of this case is going to have wide implications for artists’ ability to create out of inspiration without fear of lawsuits. Is it communication between artists or is it ripping off? As Neely puts it: “can you own genre?”. You would think no, if you look to Kenrick & Co. v Lawrence & Co., an old English case, where the court ruled that copyright protection should only cover aspects of works that are unique – common elements of genre are by definition, not special. I guess that depends on how broadly you define genre. The argument between simply adhering to a musical style vs. direct copying is very same tension courts have to balance when they apply Canada’s Copyright Act consistent with its purpose: “to balance the public interest in the encouragement and dissemination of works of the art and intellect…and obtaining a just reward for the creator” (Theberge).
The question of common genre v. copying also implicates the doctrine of independent creation, which also exists in the U.S. Check out minute 0:45 of Neely’s video for an interesting example of how access to Gaye’s song is probably hard to disprove in this case in particular. If in a copyright suit, it’s found that an artist had access to the source, because of the doctrine of “subconscious copying”, degree of genre similarity vs degree of source similarity will be the most material factual dispute. From there, the doctrine of subconscious copying holds the defendant’s intent irrelevant; the question is whether reproduction occurred or not. However, see “There’s No Such Thing as Independent Creation, and It’s a Good Thing, Too”, (Author: Christopher Buccafusco, link below) for a psychologically-rigorous critique on how the importance given to this question is based in legal fiction. Buccafusco argues that this “unknowable” question of whether similarities arise from subconscious copying or from one’s own inspiration tends to be answered by factfinders against the defendant while the U.S. Copyright Office generously accepts assertions of independent creation by the plaintiff (due to, for one, the higher evidentiary burdens on defendants at trial vs. for copyright registrants at the copyright office)(at page 3). He argues, and I agree, that this is where politics intersects with copyright, privileging earlier and wealthier creators, or “those creators who most successfully wield [the law’s] linguistic, political, and emotional tools.
Christoper Buccafusco’s paper:
https://papers.ssrn.com/sol3/papers.cfmabstract_id=4053743#:~:text=Independent%20creation%20is%20the%20foundation,it%20is%20not%20independently%20created.