A jury strikes the right chord

Last week, a US jury found ruled in favour of singer songwriter Ed Sheeran, agreeing that he did not unlawfully copy an earlier hit (Sheeran’s response is above). This was the right verdict for the right reasons, and hopefully it will finally bring some common sense to this.

The lawsuit was brought by the estate of Ed Townsend, who was co-writer with Marvin Gaye of Gaye’s 1973 US Number One song, “Let’s Get It On”. Townsend’s heirs alleged that Sheeran’s 2014 Global hit, “Thinking Out Loud”, had copied the “heart” of “Let’s Get It On”—its melody, harmony, and rhythm. Sheeran’s lawyers argued that any similarities in the songs was because they were both built on the same non-copyrightable building blocks used in pop music.

The actual heart of the issue is that nearly all of the best-known pop songs, regardless of genre, have relied on the same four chords. This fact has long been a staple of Australian musical comedy act Axis Of Awesome, who were the subject of a “Weekend Diversion” post I published in 2012. That post included their song “4 Chords”, which demonstrated the fact (a live performance of their song is below).

After the verdict, Sheeran read a statement in which he said, "I'm just a guy with a guitar who loves writing music for people to enjoy. I am not and will never allow myself to be a piggy bank for anyone to shake." Money is often the motivation for frivolous lawsuits filed by the writers of often extremely obscure songs, and it’s surely a factor for other suits when the writers being sued have a major hit. We don’t know if money played a role in this case—it may have been an honest lack of understanding of how similarities between pop songs is inevitable when they’re all built on the same four chords. As Sheeran 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 create music long after we are all gone."

The saga for this song isn’t over. The investment banker who owns the copyright to Marvin Gaye’s songs has TWO lawsuits against Sheeran over the same song, one of which is about the recording, which seems like an especially odd tack to take. However, it was similarities in recordings that in 2015 gave the copyright holders to Gaye’s "Got to Give It Up" a legal victory over Robin Thicke and Pharrell Williams’ song "Blurred Lines", with the jury agreeing that it copied Gaye's song. [Full dislosure: I felt the jury got it wrong].

I believe that copyright is important for artists to protect what they create during their own lifetime. But copyright was never intended to be an endless revenue stream for the corporations who control the copyrights of much of what is published in print, on film, or in recordings. The USA has been particularly terrible about enshrining corporate control over copyright, and has often bullied other countries—including New Zealand—to change their laws to suit US corporations’ interests. Massive reform of copyright law, especially in the USA, is important and desperately needed, but it’s also an entirely separate issue.

The main issue in this and many similar cases is that pop music is based on the same four chords, and the same chord progressions, all of which are re-used again and again and again. Chances are good that any two pop songs will sound similar, at least in part, because they’re all made out of the same building blocks. If more silly lawsuits fail, the cost of trying it on will become too high to bother, and then songwriters won’t have to keep second-guessing themselves, leaving them free to create. And the world desperately needs more people creating, not more lawyers in courtrooms fighting over four music chords.