The closely watched music copyright trial involving Ed Sheeran, who was accused of copying his Grammy-winning ballad “Thinking Out Loud” from Marvin Gaye’s classic “Let’s Get It On,” has wrapped up its first week at federal court in Manhattan.
Mr. Sheeran testified that he and a collaborator had written “Thinking Out Loud” based on their own experiences, and at one point played his guitar in court to illustrate his songwriting. Lawyers for the plaintiffs played what they described as “a smoking gun”: a fan video showing Mr. Sheeran move seamlessly between “Thinking Out Loud” and “Let’s Get It On” at a live show. The trial was briefly interrupted on Wednesday afternoon when the plaintiff, Kathryn Griffin Townsend, whose father, Ed Townsend, co-wrote “Let’s Get It On,” appeared to collapse and was carried out of the courtroom.
The music industry is keenly interested in the outcome of the case. Over the last decade, the business has been rocked by a series of infringement suits that have involved questions of just how much or how little of the work of pop songwriters can be protected by copyright, and how vulnerable they are to legal challenges.
Here is a guide to what to know about the trial.
What do the songs sound like?
The lawsuit against Mr. Sheeran involves only the underlying musical composition of the two songs — their melodies, chords and lyrics — and not the specific recordings.
Listen to Ed Sheeran’s “Thinking Out Loud”
Listen to Marvin Gaye’s “Let’s Get It On”
What are the trial’s highlights so far?
Appearing in a suit and tie, and with his red hair tousled, Mr. Sheeran testified that he and a collaborator, Amy Wadge, wrote “Thinking Out Loud” independently — in a quick songwriting session that took place before and after dinner one evening in February 2014 — and he denied that they copied “Let’s Get It On.”
“If I had done what you’re accusing me of doing, I’d be a quite an idiot to stand on a stage in front of 20,000 people and do that,” Mr. Sheeran said on Tuesday, under questioning by Keisha D. Rice, one of the lawyers for the plaintiffs. The case was brought by the family of Ed Townsend, who died in 2003.
After the jury saw the “mash-up” video, Mr. Sheeran testified that he frequently performs such medleys in concert, which are made possible by the limited harmonic palette of mainstream pop music.
“Most pop songs can fit over most pop songs,” Mr. Sheeran said. He added: “You could go from ‘Let It Be’ to ‘No Woman, No Cry’ and switch back.”
To underscore that point, his lawyers played another video, by the Australian musical comedy group the Axis of Awesome, in which the three members run through snippets of songs by Journey, Elton John, Lady Gaga, Beyoncé and others in succession, over the same four chords.
On Thursday, Mr. Sheeran used his guitar to rebut testimony by Alexander Stewart, a musicologist hired as an expert witness for the plaintiffs. Mr. Stewart had argued that in the opening of “Thinking Out Loud,” one of the four chords that Mr. Sheeran plays is similar to the minor one that appears in the same position of the progression throughout “Let’s Get It On.”
Strumming his guitar, Mr. Sheeran struck the major chord he said he has played at “every single gig,” and then, with a slight grimace, the minor one that Mr. Stewart suggested.
“It works very, very well for him,” Mr. Sheeran said, “but it’s not the truth.”
The trial opened with testimony from Ms. Townsend. She praised Mr. Sheeran as “a great artist with a great future” and said she had brought the case reluctantly.
“I have to protect my father’s legacy,” she said.
What parts of the songs are in dispute?
A quirk of the law restricts which aspects of “Let’s Get It On” (1973) are under copyright. For many songs made before 1978, only the contents of the sheet music submitted to the Copyright Office (known as the “deposit copy”) are protected. With “Let’s Get It On,” that notation was skeletal: just chords, lyrics and a vocal melody. Other key aspects of the track, like its bass line and signature opening guitar riff, were absent.
That means that the lawsuit primarily comes down to the chord progressions of the two songs, which are nearly — but not entirely — identical.
Both songs are based on a sequence of four chords in an ascending pattern, but on “Thinking Out Loud,” the second chord in the progression is slightly different from the one used in “Let’s Get It On.” (Mr. Stewart, the plaintiffs’ music expert, acknowledged the difference in an analysis submitted to the court, but called the two chords “virtually interchangeable.”)
The case may hinge on just how distinctive this chord progression is. Mr. Sheeran’s lawyers argue that the chords are generic building blocks, and fair game for any musician. In filings with the court, Mr. Sheeran’s musicologist notes more than a dozen songs, including hits like the Seekers’ “Georgy Girl” and Donovan’s “Hurdy Gurdy Man,” used the same basic sequence before “Let’s Get It On.” A guitar textbook submitted in evidence cites it as a standard progression that can be used by any musician to write a song.
The plaintiffs argue that even if the chords are public domain, the specific way they were used in “Let’s Get It On,” including the song’s syncopated rhythmic pattern, is original enough in its “selection and arrangement” of those elements to be protected by copyright.
What are the stakes?
The trial is being watched closely in music and legal circles as the latest example in a series of cases that have dealt with whether commonplace bits of harmony or melody can be owned by any composer or are part of the public domain.
The trend began in 2015 when a jury found that Robin Thicke and Pharrell Williams, in their hit “Blurred Lines,” had infringed on the copyright of another Gaye tune, “Got to Give It Up,” and they were ordered to pay more than $5 million in damages. The case shocked many legal experts — and musicians — who believed that Mr. Thicke and Mr. Williams were being penalized for using basic musical building blocks, like harmonies and rhythmic patterns, that had long been considered free for any musician to use.
In 2020, an appeals court decision affirming Led Zeppelin’s victory over a copyright challenge to its song “Stairway to Heaven” seemed to steer case law back to more familiar territory. But plaintiffs are free to seek relief if they feel their rights have been infringed, and jury trials over music copyright can be especially unpredictable.
The Led Zeppelin case changed that trajectory, with its ruling that some elements of creative works were so commonplace that only “virtually identical” versions infringed on copyright. Some experts say they are worried that if Mr. Sheeran loses, further disruption could ensue.
“If in this case an extremely common chord progression, set to a basic harmonic rhythm, is privatized,” said Jennifer Jenkins, a law professor at Duke who specializes in music copyright, “then we are going in reverse, and we are removing essential ingredients from every songwriter’s tool kit.”
Townsend’s heirs say they are protecting his work against another song that stole its musical “heart.” In opening statements, Ben Crump, another lawyer for the Townsend family, said that Mr. Sheeran “recognized the magic” in “Let’s Get It On” and “decided to capture a bit of that magic for his own benefit.”
Has Mr. Sheeran faced copyright cases before?
Yes. In 2016, the two songwriters of “Amazing,” which was performed by Matt Cardle, a winner of the British TV competition “The X Factor,” sued Mr. Sheeran, saying he copied aspects of their song for his hit “Photograph.” The case was settled a year later, and the writers of “Amazing” were added to the credits of “Photograph.”
Last year, Mr. Sheeran successfully defended himself at trial in Britain in an infringement case involving another of his hits, “Shape of You.” Afterward, Mr. Sheeran spoke in personal terms about the toll of defending against such accusations, and said that the flood of recent cases was “really damaging to the songwriting industry.”
“There’s only so many notes and very few chords used in pop music,” Mr. Sheeran said, in a video posted to Instagram. “Coincidence is bound to happen if 60,000 are being released every day on Spotify.”
He added, “This really does have to end.”
