English pop musician Ed Sheeran once again finds himself in the crosshairs of a high-profile copyright infringement lawsuit, this time in the Southern District of New York over alleged similarities between his smash hit “Thinking Out Loud” and Marvin Gaye’s iconic “Let’s Get it On.” We wrote about another recent suit filed against Sheeran for his song “Photograph” here.
The heirs of Ed Townsend, who co-wrote “Let’s Get it On” with Gaye, allege that Sheeran copied the “harmonic progressions [and] melodic and rhythmic elements” of “Let’s Get it On,” which comprise the “heart” of the work. To highlight the similarities between the songs, the heirs contend Sheeran has referenced and even performed “Let’s Get it On” when performing “Thinking Out Loud.” Indeed, we found a video of Sheeran segueing from “Thinking Out Loud” to “Let’s Get it On” during a concert (the transition occurs at about 4:30).
Although the complaint is rather scant on details, there are several clues as to the heir’s likely theory of the case. As Sheeran himself apparently recognizes, the songs share nearly identical chord progressions, at least for the main verse and chorus sections of each song (there are some differences in the transitional sections). “Thinking Out Loud” features a I – I/iii – IV – V progression while “Let’s Get it On” uses a I – iii – IV – V progression. The second chords in each progression differ by only one note and the harmonic effect of the chords is very similar. As in most cases, these chord progressions, on their own, are not unique. Other songs sharing these progressions include “Power of Love” by Huey Lewis and the News and “Crocodile Rock” by Elton John.
The complaint also references several times the significance of the rhythmic elements in “Let’s Get it On.” For example, the heirs state that the “prominence of the bass line and drum composition throughout [‘Let’s Get it On’] make these compositional elements qualitatively important to the musical work as a whole.” They allege that Sheeran’s song is “substantially and/or strikingly similar to the drum composition from [‘Let’s Get it On’].” Emphasis added. In a case brought by Gaye’s heirs against Robin Thicke and Pharrell William over the song “Blurred Lines,” the rhythmic similarities with Gaye’s “Got to Give it Up” may have factored into the jury’s $7.4 million award (later decreased to $5.3 million) to Gaye’s heirs. Some commentators believe that the decision in that case represents a heightened focus on the role rhythm and “feel” play in evaluating copyright infringement claims. The heirs in this case may be borrowing a page from Gaye’s heirs’ songbook.
Here is a video comparing the two songs.
The TMCA will keep you updated on this case as more details emerge.