‘Thinking Out Loud’ – Ed Sheeran Faces Copyright Infringement Allegations

Ed Sheeran is currently facing copyright infringement allegations in the US, over his hit single ‘Thinking Out Loud’. The lawsuit alleges that he has copied key parts of Marvin Gaye’s song, ‘Let’s Get It On’.

The lawsuit claims that there are similarities between the ‘cord progression and harmonic rhythm’ between the two songs. Whereas Ed Sheeran’s lawyers have commented that the parts similar to Marvin Gaye’s track which he did take are not ‘unique enough’ to infringe copyright laws, the recent motion to dismiss the lawsuit has been denied by a Judge in the US.

A date for the trial in the US is yet to be set. Ed Sheeran may take heart in his recent victory before the UK Courts where he had previously been accused of copyright infringement (more on this below). That said, Ed Sheeran will no doubt be acutely aware that Marvin Gaye’s family was awarded $5.3million against Pharrell Williams and Robin Thicke in the US, having successfully claimed that the hit single ‘Blurred Lines’ infringed the copyright in Marvin Gaye’s, ‘Got to Give it Up.’

UK position

Whilst the most recent case against Ed Sheeran has been filed in the US, the issues to be determined by the US Court will likely mirror those that would be considered in the UK, had the case been issued here.

Issues such as subsistence and ownership of copyrighted work will be common to both jurisdictions. For example, in the UK, the music i.e. the ‘cord progression and harmonic rhythm’ of a song would qualify for copyright protection as a ‘musical work’ under the Copyright Designs and Patents Act 1988, with the written lyrics protected as a ‘literary work’.

In the UK, copyright in that work is then infringed where an unauthorised third party copies it.

‘Copying’ in this context means to ‘reproduce the work in any material form’. If the music or lyrics are copied entirely, this is a clear copyright infringement. However, it is no surprise that it is trickier to detect copyright infringement if only part of the music or lyrics has been copied. It must constitute a ‘substantial part of the work’, for infringement to be found.

The test for this is a quantitative, not qualitative one. There is a big hurdle to overcome, with the matter likely requiring a substantial amount of evidence in Court to prove it one way or another. Ultimately, it is for the Judge to decide whether the part of the song allegedly copied is a ‘substantial part’ of the work from which it was taken.

In addition, no matter how similar the impugned work may be to the copyrighted work relied upon, copying has to be proved. Put another way, if a musician devises a chord pattern that is highly similar to one previously written by another musician, if that chord pattern was not copied, the copyright in the original work will not have been infringed.

The UK Court’s decision in copyright lawsuit over hit single ‘Shape of You’

‘Substantial part’ and ‘copying’ took centre stage in Ed Sheeran’s recent victory against Sam Chokri. As with the case filed by the Gaye family in the US, Ed Sheeran was alleged to have infringed Mr Chokri’s copyright in an earlier musical work – in this case, it was alleged that Ed Sheeran and his fellow songwriters had copied (amongst other things) the lyrical structure, tone and harmonic progression of the chorus of Mr Chokri’s song ‘Oh Why,’ in Sheeran’s single, ‘Shape of You.’  The Judge said that the “differences between the relevant parts of the songs, which provides compelling evidence that the ‘Oh I’ phrase in Sheeran’s song ‘originated from sources other than Oh Why”.

Access to the Chokri song was also an issue, with Chokri arguing that Ed Sheeran had either heard it on the radio or that people associated with Ed Sheeran had played it to him. Both arguments were dismissed on the evidence, with Ed Sheeran and his songwriting colleagues succeeding overall. Whilst the Judge did acknowledge some similarities between the two songs, he concluded that these were only a starting point for any possible infringement of copyright.

Conclusion

How the litigation in the US will play out remains to be seen. However, whilst there may well be some similarities between the legal and evidential arguments that were in play in the UK proceedings, given how famous ‘Let’s Get It On’ is, we can be confident that the battle ground will be drawn differently to the litigation that took place in the UK.