Ed Sheeran's “Thinking Out Loud” did not infringe the copyright of Marvin Gaye's “Let's Get It On,” a federal appeals court ruled on Friday (November 1), saying the two songs share only “fundamental musical building blocks” that cannot be owned by any songwriter.
In a ruling handed down more than a decade after Sheeran's chart-topping hit was first released, the US Court of Appeals for the Second Circuit dismissed an infringement lawsuit brought by Structured Asset Sales, a company that owns a small stake in the rights to song by Gaye. .
The case argued that Sheeran's song copied a chord progression and rhythm from Gaye, but the appeals court said the suit essentially sought “a monopoly on a combination of two fundamental musical building blocks.”
“The contested four-chord progression—ubiquitous in pop music—combined with a syncopated harmonic rhythm is too well-researched to meet the threshold of originality required by copyright law,” a panel of appeals judges wrote. “Over-protection of such basics would threaten to stifle creativity and undermine the purpose of copyright law.”
Looking at the two songs more broadly, the Second Circuit also ruled that Sheeran's track was not sufficiently similar to Gaye's to amount to copyright infringement: “Neither the melody nor the lyrics of 'Thinking Out' Loud bear any resemblance to those of 'Let's upload it.' There are undeniable and obvious differences between them.”
Sheeran has faced multiple lawsuits over “Thinking,” a 2014 track co-written with Amy Wadge that reached No. 2 on the Billboard Hot 100 and eventually spent 58 weeks on the chart. The daughter of Ed Townsend, who co-wrote the famous 1973 tune with Guy, first sued. That case ended in a high-profile trial last year, resulting in a jury verdict that cleared Sheeran of any wrongdoing.
The case decided Friday is a separate lawsuit filed by SAS, an entity owned by an industry executive David Pullman which controls a different share in Townsend's copyright to the iconic track. In May, weeks after the grand jury's verdict, a federal judge dismissed SAS's lawsuit, ruling that it sought an “impermissible monopoly on a basic musical building block.”
In upholding that decision on Friday, the Second Circuit echoed the earlier decision's concern about copyright overprotection and the threat to future songwriting.
The chord progression and harmonic rhythm at issue in the case are “garden variety” elements that had been used in many songs, the appeals court said, pointing to evidence that they had appeared in The Seekers' “Georgy Girl” and “Since I Lost.” My Baby” by The Temptations — two tracks that predated Gaye's song by years. The appeals court noted that there are “a limited number of notes and chords available” and that “common themes recur frequently.”
“In the field of popular songs, many, if not most, compositions bear some resemblance to earlier songs,” the court wrote, citing a treatise on copyright law. “So while a similar chord progression and harmonic rhythm may create a similar sound and feel, that's not enough.”
The ruling is a major victory for Sheeran, but the battle for “Thinking” isn't over yet. SAS also has another lawsuit against Sheeran pending, pushing an unorthodox attempt to claim a more expansive copyright covering the recording on “Let's Get It On” instead of the written music. This case has been stayed pending the execution of the previous action.
In a statement to Bulletin board After Friday's ruling, SAS owner Pullman criticized the appeals court for citing “two songs out of over 60 million recorded songs” in its analysis. And he stressed that the decision did not address his company's arguments based on a recent US Supreme Court ruling on federal regulatory authority.
Sheeran's lawyer, Donald Zachary of the Pryor Cashman law firm, he said Bulletin board that he and his clients were “pleased” by the court's decision: “This decision is consistent with the jury's rejection of any claim of violation of [earlier] case, finding that Ed and Amy independently created “Thinking Out Loud''.
