All music sounds the same these days. It's a throwaway statement you've probably heard, or even possibly said, when falling victim to a radio ear-worm that you can't quite place. Now, with the ongoing legal battle between Ed Sheeran and the estate the co-writer of Marvin Gaye's “Let's Get It On”, that debate has come front and centre.
A little explainer on the court case to get you up to speed: Back in 2015, Sheeran released the first wedding dance song of the ages, “Thinking Out Loud”. It then went on to become his second No.1 single and one of the most enduring in his oeuvre. Cut to 2017, when the estate of writer and composer Ed Townsend, made up of his children, sued Sheeran for copyright with his song. Their argument is that Sheeran copied a particular set of chords from “Let's Get It On”, one of Marvin Gaye's most successful songs. In a court trial that eventually kicked off earlier this month, the lawyers for the Townsends said “The defendants copied the heart of "Let’s [Get It On]" and repeated it continuously throughout “Thinking [Out Loud]."
This is where things get into the reeds a little bit, because the exact series of chords that the Townsend estate is arguing is ripped can be found in the verses of each song. Playing them in succession, it is pretty clear that "Thinking Out Loud"'s verses do sound almost identical to the verses of “Let's Get It On”, but beyond the actual musical structure of the instruments, there's very little similarity. The choruses are, of course, very different, but also the tones, moods and lyrical content of both tracks are also opposed. What's left here, then, is an argument about what exactly the core of a song is. Is it the musical structure, the melody or the lyrics? Or is it a combination of some of those parts? That ambiguity about where the tipping point for copyright holds weight is something that's plagued music for a long time.
Back in 2018, Robin Thicke and Pharrell famously lost their court battle with Marvin Gaye's estate over a copyright claim for their controversial hit “Blurred Lines”. In that suit, it was claimed the pair ripped off the singer's song “Got to Give It Up", and the estate walked away with more than $7m and a share of the royalties. This case isn't even Ed Sheeran's first battle with copyright accusations, having won a suit 2022 suit against him and his mega-hit “Shape of You".
The main determining factors currently on whether an artist can be accused of copyright infringement come down to whether the person will have likely heard the alleged original song or whether enough of a substantial element of the song has been ripped blatantly. In the current case of Ed Sheeran, the Townsend estate raised the claim after they heard the singer mash-up both songs on tour, calling the move a “smoking gun” in their favour. To that, Sheeran said “Most pop songs can fit over most pop songs. If I had done what you’re accusing me of doing, I’d be quite an idiot to stand on a stage in front of 20,000 people and do that."
Clearly, there's some resentment from Sheeran over the claim he knowingly copied the song, but the ire is understandable considering the ramifications of agreeing that songs sounding similar to other songs is tantamount to copyright infringement. While it may seem that, on the whole, there are infinite ways songs can be formed, as time progresses, the amount of new melodies that can be made undeniably gets smaller and smaller. In 2009, Australian comedy group the Axis of Awesome performed a medley called The 4 Chord Song, which went on to be one of the first viral YouTube sensations. In it, they show how countless songs like Journey's “Don't Stop Believing”, James Blunt's “You're Beautiful”, Maroon 5's “She Will Be Loved” and The Beatles “Let it Be” all have the exact same chord structure and can be layered on top of each other.
Additionally to that, with streaming now becoming the dominant force in music consumption, the way artists make music has changed, becoming much more streamlined to meet algorithmic needs and to ensure listeners make it all the way to the end of the track without skipping in order to get paid. This has meant that songs inarguably have started to sound more similar and, contrary to popular belief, that's not just a boomer opinion on pop music.
While Sheeran's case is against a song from over 40 years ago, if the court decides in Townsend's favour, it could set a dangerous precedent for music to come. With it being such a high-profile case, it could effectively make similar chord progression a suable offence and, if someone is litigious enough, could make for a pretty hefty payday. Sheeran himself has already commented on the rise in these cases, saying “Claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim." He effectively argues that an accusation alone is enough to make songwriters wary of accidentally encroaching on a similar melody. If that paranoia starts to have a bearing on how music is made, and if suing based on chord progression a viable route for artists and estates, it's hard to see anything but a good outcome for lawyers, and a bad one for music.
