Three-Minute Legal Talks: The Copyright Infringement Case Over "Thinking Out Loud"

With more than 2 billion streams on Spotify alone, Ed Sheeran’s “Thinking Out Loud” is one of his most recognizable pieces of work. Composed in collaboration with singer and songwriter Amy Wadge, the song won two Grammy Awards for Song of the Year as well as Best Pop Solo Performance in 2014.

For years, though, the song’s originality has been in question, with some listeners suspecting influence from Marvin Gaye’s 1973 classic “Let’s Get It On,” co-written by Ed Townsend. Heirs of Townsend brought a lawsuit against Sheeran, believing musical elements within the two tracks were too similar, constituting copyright infringement.

In three minutes, Peter Nicolas, the William L. Dwyer Chair in Law and an adjunct professor of music, covers the lawsuit and explains why the jury ultimately sided with the pop star in this landmark case.

Read the Transcript

Peter Nicolas: Hi, I'm Peter Nicolas. I'm the William Dwyer Chair in Law and adjunct professor of music at the University of Washington.

Three-Minute Legal Talks: Why did the family of Ed Townsend, who co-wrote “Let's Get It On” with Marvin Gaye, sue Ed Sheeran for copyright infringement regarding his song “Thinking Out Loud”?

PN: So, the reason for the suit was a belief that a number of musical elements common to both pieces — including pitches, rhythm, baseline and tempo — were so similar in the view of the plaintiffs between the two pieces that they thought that Ed Sheeran had copied the original.

TMLT: Sheeran explained the chord progression used in “Thinking Out Loud” was a common building block used by many artists. Why was this an issue in the trial?

PN: One of the elements that was claimed to be in common were the chord progressions between the two pieces. Sheeran was trying to show that the particular chord progression that was in common — and that's really just something that is played underneath the singer while they're singing — so, he was trying to show that this is a very common element, a common chord progression that's used in countless pieces. And so I think the particular chord progression was something like this: D major, F sharp minor, G major, A major, back to D major.

And one of the things about music, and I think Sheeran was trying to make this point, is that the chord progression basically takes us on a journey towards tension and then back into release. And the journey from one to five — that first chord is the D chord, the A the five chord —  is a journey towards tension, and then the return to one is returned to release or a comfortable feeling that you get. And he was trying to show this is used in countless songs, and it doesn't make sense for one artist to be able to copyright what is a very common progression of chords.

TMLT: Why did the jury ultimately side in Sheeran’s favor?

PN: So, interestingly, even though the experts spent a lot of time trying to argue the ways in which these two songs were similar, or different from one another, the jury took what was probably the narrowest route, which was to say, even if these are similar, if Ed Sheeran can show that he independently created this without any influence from Townsend and Gaye’s piece, it's a complete defense to liability. And so he and his co-writer walked the jury through their creative process and persuaded the jury that they had done this without any influence from the other piece. And therefore the jury didn't really have to get into this question of how much similarity is there? And is it enough to find in favor of copyright infringement?

TMLT: What does this case mean for artists as a whole as they go about composing music?

PN: Two takeaways from this case. One, Ed Sheeran has made a decision to defend these cases all the way to trial and verdict instead of settling them as many artists do because he believes that these are a hindrance on the creative process. And having now won a few of these cases, both overseas and here in the United States, I think maybe a message is being sent that these are not going to be easy opportunities to get a little bit of a payoff from a successful artist.

I think second, had the jury come out the other way and found that these similarities and common elements were enough, it actually would have had a chilling effect on the creative process. I think artists would have feared that things that really are basic building blocks would be enough to subject them to liability and they might decide not to put out very valuable creative works.