Ed Sheeran and Copyright: The Consequences of Thinking Out Loud
Ed Sheeran faces trial in the US for yet another copyright action1, this time for potential infringement of Marvin Gaye and Ed Townsend’s 1973 hit classic Let’s Get It On by use of certain chord progressions in his 2014 hit Thinking Out Loud.
In a September 2022 decision Justice Louis Stanton of the New York Federal Court dismissed Sheeran’s motion for summary judgement dismissing the claim for infringement bought by the heirs of Townsend in 2017. Justice Stanton ordered that the matter be scheduled for trial before a jury.
In the preliminary hearing, Counsel for Sheeran argued that the alleged similarities, including the harmonic rhythm and chord progression, are a combination of common elements that are “stylistically commonplace”2 and are therefore not protectable.
Conversely, Counsel for Townsend argued that the ‘harmonic rhythm’ and ‘chord progression’ of Ed Sheeran’s 2014 hit directly copies that of Let’s Get It On.
Justice Stanton found that “there is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work"... and that “a work may be copyrightable even though it is entirely a compilation of unprotectable elements.” Thus, the Court has called for a trial, leaving it for the jury to decide the outcome based on the facts.3
Counsel for Townsend conceded that whilst the elements on their own are “commonplace and unprotectable”, their use in combination provides a strong case for originality and protection.4 The Court reasoned that in limiting their argument to those given elements, the protection is only afforded “thinly”, so as to allow subsequent authors the freedom to create works, so long as they don’t use that specific “selection and arrangement”.5
The jury must consider the inherent composition of Let’s Get It On, including melody, rhythm and harmony. To find infringement of copyright, counsel for Townsend would have to prove that:
- the defendant has actually copied the plaintiff’s work; and
- a substantial similarity exists between the defendant’s work and the protectable elements of plaintiffs”.6
The New Zealand equivalent is similar to that of Australia, where the Court follows a five limb process in proving infringement of copyright. This requires that:
- The plaintiff proves that the composition is an original work that is entitled to copyright protection.
- The plaintiff is proven to be the owner of that work.
- There is unauthorised reproduction of the entire or a substantial part of the copyright work.
- There is a sufficient objective similarity between the copyright work and the infringing work.
- A causal connection can be found between the copyright work and the infringing work that infers that the copyright work was the source from which the infringing work was directly or indirectly derived.7
Copyright in musical works can be difficult to enforce as generally it is not the whole of the work that is copied. There will have to be a detailed examination of musical elements to determine any similarities and whether the copied part is a substantial part of the earlier work. In this regard, ‘substantial’ is defined on the quality of what is taken, and a court may find an essential part of the musical work is copied even if that part is quantifiably small.8 In the case of musical works, the Court may consider whether “there is an amount taken which would be recognised by any person”.9
Similar to the New Zealand case of Eight Mile Style (Eminem) v New Zealand National Party10, this trial will consider whether ‘commonplace’ musical elements can be owned by a composer, or whether they are subject to the public domain. The implications will be felt most by the music industry, as it will determine whether musicians are free to use ‘commonplace’ harmonies and rhythms, or will face similar scrutiny as Thinking Out Loud.
We await with interest how this case plays out.
Gracie Scragg - May 2023
1. Ed Sheeran previously successfully defended an allegation for copyright infringement of Sami Chokri and Ross O’Donoghue’s “Oh Why” in writing “Shape of You”
2. Structured Asset Sales LLC v Sheeran  18 Civ. 5839 (LLS)
3. Following Warner Bros. Inc. v Am Broad Companies Inc. 720 F. 2d 231, 239 (2d Cir. 1983)
4. Structured Asset Sales LLC v Sheeran  18 Civ. 5839 (LLS) at page 6
5. Tufenkian Imp./Exp. Ventures, Inc. v Einstein Moomjy, Inc., 338 F. 3d 127, 136 (2nd Cir. 2003)
6. Peter F. Gaito Arcitecture LLC v Simone Dev. Corp., 602 F.3d 57, 63 (2nd Cir. 2010)
7. Wham-O MFG Co v Lincoln Industries Ltd  1 NZLR 641 (CA)
8. McKeough, J., Stewart, A. and Griffith, P. (2004) “Direct Infringement of Copyright,” in Intellectual property in Australia. 3rd edn. Chatswood, NSW: LexisNexis Butterworths, p. 214.
9. Hawkes and Son (London Ltd. V Paramount Film Service Ltd.  Ch. 593 (Court of Appeal).
10. Eight Mile Style, LLC v New Zealand National Party  NZHC 2603 (25 October 2017).