Ed Sheeran Verdict: Right for the Wrong Reason?

Copyright and entertainment attorney Stephen Carlisle offers a unique perspective on the recent jury decision regarding Ed Sheeran and his alleged plagiarism.

by Stephen Carlisle of Nova Southeastern University

On May 4, 2023, a jury unanimously decided that Ed Sheeran’s song “Thinking Out Loud” did not infringe Marvin Gaye’s classic “Let’s Get It On.” ¹ This is undoubtedly correct as the songs are not substantially similar. But the jury never got there. Instead, it ruled that Sheeran and co-writer Amy Wadge had “independently created” “Thinking Out Loud.” This, I’m afraid, is not quite correct.

Independent creation is a defense that usually is raised in cases where access is an issue. That is to say, one cannot copy what one has never heard. This was the seminal point in the Selle v. Gibb copyright lawsuit where the Bee Gees created “How Deep Is Your Love” thousands of miles away from the Chicago songwriter who sued them. ² So, independent creation would apply if Sheeran had never heard “Let’s Get It On.”

But that is not the case here. Sheeran was absolutely familiar with “Let’s Get It On.” In fact, one of the prime pieces of evidence put forth by the Plaintiff was a video of Sheeran singing “Thinking Out Loud” which then segues into him singing “Let’s Get It On.” ³ This is easily accomplished because the two songs share the same basic chord progression, and a very common chord progression at that. Musicologist Brian McBrearty ⁴ puts forth this list of songs that share the same chord progression:

• I Won’t Last a Day Without You — Carpenters
• Have I Told You Lately That I Love You — Van Morrison
• Different Drum — Stone Ponies
• Fun, Fun, Fun — Beach Boys
• Jean, Jean, Roses are Red — Rod McKuen
• Georgy Girl — The Seekers
• Crocodile Rock – Elton John
• I’m Easy – The Commodores
• My Girl – The Temptations

To which Forensic Musicologist Professor Joe Bennett ⁵ adds these using a similar bass line:

• Unanswered Prayers – Garth Brooks
• Still The One – Shania Twain
• Stuck on You – Lionel Ritchie
• You Know My Name, Look Up the Number – The Beatles

So, what are we talking about here? The two songs in question are in different keys. “Thinking Out Loud” is in D. “Let’s Get it On” is in E flat. But transposing the latter into D, we see the chord progression is basically the same.

“Thinking Out Loud” goes D5 – D/F# – G5 – A sus 2.

“Let’s Get It On” goes D – F# minor- G – A7.

The second chord of “Let’s Get It On” is what in music is known as the “iii” chord and harmonically functions the same as the tonic of the key, in this case, D. So even though the two don’t share the same bass note, there is no real difference harmonically.

So, what we have are two songs that share a very basic, indeed commonplace, chord and bass sequence.

But the real legal point is the two songs are not substantially similar to each other. The melody of “Thinking Out Loud” bears no resemblance to “Let’s Get It On” and the lyrics are completely different as well. Plus, “Let’s Get It On” never leaves it’s four chord pattern, while “Thinking Out Loud” jumps to an entirely new section in the middle in which the chord progression is E minor – A -D. (Thanks to YouTuber Rick Beato for pointing this out.) ⁶

But, what you can’t say is that “Thinking Out Loud” was created entirely independent of “Let’s Get It On,” as found by the jury. C’mon. Not even the teensy little bit of “Let’s Get It On” made its way into “Thinking Out Loud”? Even unintentionally or subconsciously as George Harrison found out in the “My Sweet Lord” litigation? ⁷ I don’t think so.

The point is that what is similar is a commonplace chord progression and bass line that should not be protected by copyright. The better stand for the jury to make is that the two songs are not substantially similar, as required by copyright law for a finding of infringement.