Let’s Get It On! Ed Sheeran Headed to Trial for Marvin Gaye Infringement Claim - Fordham Intellectual Property, Media & Entertainment Law Journal
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Let’s Get It On! Ed Sheeran Headed to Trial for Marvin Gaye Infringement Claim

Let’s Get It On! Ed Sheeran Headed to Trial for Marvin Gaye Infringement Claim

Ed Sheeran will go to court this fall to resolve a $100 million suit that claims his 2014 hit “Thinking Out Loud” ripped off the Marvin Gaye classic “Let’s Get It On.” The suit, brought in 2016 by the heirs of songwriter Ed Townsend, is hardly Sheeran’s first brush with copyright law. In 2017, he was sued by members of TLC, who claimed that his song, “Shape of You,” stole its vocal melody from their 90s hit “No Scrubs.” Sheeran settled by giving them songwriting credits on the song. The same year, British X-Factor winner Matt Cardle alleged that Sheeran’s “Photograph” was a note-for-note copy of one of his songs, and in 2018, a pair of Australian songwriters claimed his “The Rest of Our Life” was “identical” to one of their songs. Sheeran settled both suits out of court.

The latest case appears quite different from the pop star’s previous suits, and not just because of its eyebrow-raising demand. Unlike the songs at issue in Sheeran’s other three copyright cases, “Let’s Get It On” and “Thinking Out Loud” have completely different melodies. They do, however, share remarkably similar chord progressions, rhythm, and “groove.” As music theorist Rick Beato demonstrates1, measures taken from the two songs transition into each other seamlessly. Sheeran have acknowledged the similarity himself, using “Let’s Get It On” to segue into “Thinking Out Loud” at a performance in Germany in 2014. Unfortunately for the Townsends, chord progression and rhythm have not traditionally been regarded as grounds for infringement. The same four-chord progression featured in Pachelbel’s Canon in D can be found in dozens of hit songs.2 Music journalist, Lewis Corner, has also pointed out that The Temptations’ “My Girl” can be sung perfectly over “Let’s Get It On.”3 Sheeran’s legal team, which settled early in his other three suits, evidently feels confident enough to proceed to trial.

Despite the “all pop music sounds the same anyway” defense, another Marvin Gaye copyright case could be key to victory for the Townsends. The famous 2015 dispute between Robin Thicke and Pharrell Williams, and Gaye’s heirs featured a similar compositional question.4 That lawsuit claimed that “Blurred Lines” by Thicke and Williams infringed upon Gaye’s “Got to Give It Up.” The songs had little in common besides a syncopated rhythm, chord progression, and overall “vibe.” Thicke even took to the witness stand with a piano, playing a medley of songs from the Canon in D lineage, like “Let it Be,” “Forever Young,” and “No Woman No Cry,” to demonstrate how songwriters can use the same chords to write distinctive compositions.5 The jury didn’t buy it, awarding the Gaye heirs a multimillion-dollar verdict. Over 200 artists filed amicus briefs warning that a judgment against “Blurred Lines” would set a dangerous precedent for songwriters, but the 9th Circuit was undeterred, instructing the jury to make its decision based only on similarities between the sheet music of the two songs.

Sheeran’s case will be heard in September by the 2nd Circuit, which has yet to decide a music infringement claim based on song structure. If he is thinking of testifying with his own medley, he should perhaps get in touch with Thicke, who tweeted “call me” at the British singer last summer.6

  1. Rick Beato, ED SHEERAN VS. MARVIN GAYE LAWSUIT: Let’s Compare!, YouTube (July 2, 2018), https://www.youtube.com/watch?v=0kt1DXu7dlo. [https://perma.cc/F42M-AL72]

  2. Random804, Axis of Awesome – 4 Four Chord Song (with song titles), YouTube (Dec. 10, 2009), https://www.youtube.com/watch?v=5pidokakU4I. [https://perma.cc/C73A-F4RF]

  3. Lewis Corner, Ed Sheeran vs Marvin Gaye: Why this lawsuit is absolutely ridiculous, Digital Spy (Aug. 11, 2016), https://www.digitalspy.com/music/a804397/ed-sheeran-marvin-gaye-lawsuit-thinking-out-loud-lets-get-it-on/. [https://perma.cc/7LQG-R49L]

  4. Althea Legaspi. ‘Blurred Lines’ Copyright Suit Against Robin Thicke, Pharrell Ends in $5M Judgment, Rolling Stone (Dec. 13, 2018) https://www.rollingstone.com/music/music-news/robin-thicke-pharrell-williams-blurred-lines-copyright-suit-final-5-million-dollar-judgment-768508/. [https://perma.cc/K5NC-9PE5]

  5. Sam Rigby, Robin Thicke plays musical medley at ‘Blurred Lines’ copyright trial, Digital Spy (Feb 26, 2015), https://www.digitalspy.com/music/a631702/robin-thicke-plays-musical-medley-at-blurred-lines-copyright-trial/. [https://perma.cc/67E8-BJXU]

  6. Robin Thicke (@robinthicke), Twitter (June 28, 2018, 11:22 AM) https://twitter.com/robinthicke/status/1012400921291231233?lang=en. [https://perma.cc/2NLH-QHAX]

Daniel Katter

Dan Katter is a second year law student at Fordham University School of Law and a staff member of the Intellectual Property, Media & Entertainment Law Journal. Prior to law school, Dan worked in the startup space as a content creator.