Contributing Author: Lawrence Iser
The verdict is in. In a victory for music, a Manhattan jury found this week that Ed Sheeran did not infringe the copyright of Marvin Gaye and Ed Townsend’s 1973 soul classic “Let’s Get It On.”
As I explained in my recent post, Sheeran was in court battling a lawsuit brought by the heirs of Ed Townsend, who claimed that Sheeran’s 2016 Grammy’s Song of the Year “Thinking Out Loud” infringed the copyright of Gaye and Townsend’s composition, alleging that the chord progressions in the verses of the two songs were nearly identical, along with other claimed similarities in harmonies and rhythm and certain melodies. (The two tracks are thoughtfully compared here for those who wish to listen for themselves.)
When I studied copyright in law school – and pretty much until the 2015 verdict in a lawsuit between Marvin Gaye’s family and “Blurred Lines” creators Robin Thicke and Pharrell Williams – the general rule was that the copyright in a musical composition covered the melody and the lyrics. When Thicke and Williams were found liable for infringing Gaye’s “Got To Give It Up” and ordered to pay $5 million in damages plus half of their “Blurred Lines” royalties going forward, songwriters and copyright lawyers alike (myself included) fully expected that the tone-deaf injustice would be reversed by the 9th Circuit Court of Appeal. Shockingly, it was not. Notwithstanding that the two songs had obviously different melodies (as well as an amicus appellate brief filed on behalf of 200 artists calling the verdict “very dangerous” to the music industry), only one of the three appellate justices, Circuit Judge Jacqueline Nguyen (I recite her name because she deserves recognition here) correctly recognized in her dissent that the two songs were “different in melody, harmony and rhythm.” Judge Nguyen noted that her colleagues’ affirmance “strikes a devastating blow to future musicians and composers everywhere.”
And so it is that Ed Sheeran deserves a standing ovation for taking the stand with his guitar to give Townsend’s lawyer a hard time for this latest assault on music and creativity. If Sheeran’s trial had come out differently – if the jury had determined that the copyright in “Let’s Get It On” covered basic elements of music such as chord progressions – such a decision surely would have opened the floodgates to copyright holders filing baseless lawsuits to squeeze rights and profits from others’ creativity. It would have become much more difficult for artists at all stages of their careers to release new music.
As such, the music industry can breathe a collective sigh of relief over Sheeran’s win, which means that one songwriter cannot obtain a monopoly over a common chord progression. “If the jury had decided this matter the other way, we might as well say goodbye to the creative freedom of songwriters,” Sheeran remarked following the verdict. “We need to be able to write our original music and engage in independent creation without worrying every step of the way that such creativity will be wrongly called into question.”
Unfortunately, being the overly litigious society that we are, it is unlikely that Sheeran’s verdict will completely stem the tide of copyright lawsuits claiming ownership of basic elements of music composition. But for now, this verdict will go down in history as a win for musicians and creators who bring joy to our lives with their talents. As Sheeran eloquently put it, “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.”
Lawrence Iser is a Los Angeles entertainment and intellectual property attorney, who has been repeatedly named to the Billboard list of “Top Music Lawyer,” to Variety’s Legal “Impact” report, and a Hollywood Reporter “Power Lawyer.” His clients include Mattel, SeaWorld, Kinetic Content and many musical artists, publishers and record companies. He has represented several musicians in actions against political figures who illegally use copyrighted works.