This week, pop superstar Ed Sheeran is facing the music in a New York City courtroom during what’s already one of the biggest musical copyright trials in years. And while the proceedings have already proven to be a popcorn-worthy spectacle—complete with a medical emergency and rousing remarks from Sheeran himself—we have to ask: Should this trial even be happening at all?
Sheeran stands accused of copying Marvin Gaye’s iconic baby-making anthem “Let’s Get It On” for his 2014 hit “Thinking Out Loud,” which earned a Grammy Award for Song of the Year. The lawsuit, originally filed in 2017, was brought forth by the heirs of Ed Townsend, who co-wrote the song with Gaye. Their argument is that the “heart,” or core, of the 1973 Motown hit was duplicated by Sheeran.
When you listen to the two songs back to back, there are surface-level parallels, but what specifically Sheeran is being accused of copying is crucial to understand. While, mood-wise, the two songs are similar, the jurors in the case are only supposed to be assessing the melodies, harmonies, and rhythms that comprise “Let’s Get It On,” as documented on sheet music filed with the United States Patent and Trademark Office, to see whether or not “Thinking Out Loud” copies them.
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And yet, some of the language used thus far during the trial has made it seem like Sheeran is indeed on trial for, and can potentially be penalized for, “vibe theft.”
“‘Let’s Get It On’ is a song that evokes love and intimacy,” attorney Ben Crump, who’s representing the Townsends, said in his opening argument on Tuesday. “The evidence in this case is going to show that four decades later in 2014, the defendant Ed Sheeran recognized the magic of ‘Let’s Get It On’ and decided to capture a bit of that magic without obtaining permission.”
It’s a perplexingly non-specific statement to describe Sheeran’s alleged offense as capturing “a bit of that magic,” as if musicians aren’t constantly taking inspiration from their peers, past or present, and haven’t been making the same kinds of love songs for decades. What exactly is stealing “magic”? And how can you prove it? Beats me, but apparently a jury of 12 New Yorkers will be able to tell.
Crump later revealed what he called his “smoking gun”: a 2014 concert where Sheeran performed the two songs as part of a medley, which the attorney said proves “how similar the defendant’s song is to ‘Let’s Get It On.’ The melody never changed, the chord progression never changed, the harmony never changed, and the harmonic compositions never changed.”
That’s at least more technically specific, though Glee made entire episodes featuring mashups of sonically and thematically similar songs without anyone batting an eye or drafting a lawsuit.
Sheeran, for his part, has staunchly defended himself in the years leading up to the trial and even took the stand this week. “If I had done what you are accusing me of doing, I would be quite an idiot to stand on a stage in front of 20,000 people and do that,” he said on Tuesday, in response to Crump’s claim that the 2014 medley proved he’d ripped off Gaye.
“Most pop songs can fit over most pop songs,” Sheeran added. “You could go from ‘Let it Be’ to ‘No Woman, No Cry’ and switch back.”
He’s right; there are only so many chords a musician or songwriter can use when making music. Even so, he might have a hard time convincing the jury otherwise, considering the dangerous precedent set in 2015 by the infamous “Blurred Lines” case. That year, a judge ruled that Robin Thicke and Pharrell’s 2013 smash sounded too similar to Gaye’s “Got to Give It Up” and awarded the Gaye family $7.3 million. The landmark decision—which even Stevie Wonder took issue with—proved that the lines were indeed blurring in pop music and that even a simple reference could constitute theft and cost you millions.
Gaye was an iconic artist who deserved every accolade and ounce of recognition he earned, especially when you consider that he was a Black star in an industry that’s constantly discounted and outright stolen the contributions of people of color. But to stamp down every instance of sonic parallelism is intellectually dangerous, bad for creativity, and just plain bad for music.
