Ed Sheeran Is Thinking Out Loud: Can Songwriters Get Back to Writing Songs, Instead of Having to Prove That They Can?

Ed Sheeran Is Thinking Out Loud: Can Songwriters Get Back to Writing Songs, Instead of Having to Prove That They Can?

Recently, pop superstar, Ed Sheeran was involved in a copyright lawsuit in London for a claim based on one of his hits: “Shape of You.” Plaintiff Sami Chokri alleged that the hook of Sheeran’s song repeating “Oh, I” infringed on the hook of his earlier released, but less well-known record, “Oh Why.”^[1] Judge Anthony Zacaroli held that Sheeran and his co-songwriters “neither deliberately nor subconsciously” copied the plaintiff’s song.^[2] Sheeran was able to prove that the melodies were “commonplace” in pop music by referring to other hit songs that used a similar melody.^[3] Additionally, Chokri’s “speculative foundation” did not meet his burden of proving that Sheeran had listened to the song, nor did he establish that the claim was more than a mere coincidence.^[4] After being awarded $1.1 million in legal fees, the distressed Sheeran took to social media to discuss the recent attempts to “damage” the creativity of artists in the songwriting industry by making “baseless” claims such as the ones he had just defeated.^[5]

Sheeran is not alone in his battle to prove that creativity trumps copyright. Other music icons such as Dua Lipa, Katy Perry, and Led Zeppelin have been at the forefront of lawsuits for allegedly copying other songs.^[6] Zeppelin and Perry, like Sheeran, were able to prove the dissimilarities between the frivolous claims and their records.^[7] While there is no bright line rule to avoid these claims, courts are not awarding damages against these stars in the absence of a definite claim that crosses the line of mere speculation.

Since the controversial decision in the “Blurred Lines” case, which found that Pharrell Williams and Robin Thicke’s song infringed the copyright in Marvin Gaye’s song “Got to Give it Up,” songwriters have been “anxious” about being a potential “target” of a copyright suit.^[8] However, the Ninth Circuit recently held en banc in a copyright suit against Led Zeppelin that “a plaintiff must show that a work is ‘virtually identical’ to a defendant’s” in order to be successful in a copyright claim.^[9]This ruling rejected the previously established Inverse Ratio Rule, which “allowed courts to impose a showing of substantial similarity when a high degree of access was shown.”^[10] The court held that in proving that an artist copied protected aspects of the work in question, a plaintiff must prove that the defendant both “cop[ied]” and “unlawful[ly] appropriat[ed]” the plaintiff’s song.^[11] To prove “copying,” a plaintiff must show “access and striking similarity.”^[12] The hallmark of the second prong, “unlawful appropriation,” the court explained, is to prove that the works “shared substantial similarities.”^[13] To prove substantial similarities in a copyright suit, a plaintiff must both meet the extrinsic and intrinsic two-part test.^[14] The extrinsic test employs an objective comparison of specific expressive elements.^[15] The second part, the intrinsic test, is a subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works.^[16]

This narrow view might be a step in the right direction for stars such as Sheeran. Although “no bright line rule” exists, defendants such as Sheeran will be able to point to these recent victories as precedent contrasted from the commonly cited “Blurred Lines” case.^[17]

Now, Sheeran is preparing to stand trial in the United States in another copyright suit for his hit “Thinking Out Loud” which was filed in 2018.^[18] The claim, brought by Structured Asset Sales LLC, the owner of a portion of Ed Townsend’s estate, a co-writer of the Marvin Gaye hit, “Let’s Get It On,” accuses Sheeran of plagiarizing various parts of the song.^[19] Unlike the “Blurred Lines” case, which also involved a Marvin Gaye track, and which resulted in a multimillion dollar payment for Gaye’s estate, this suit is not being brought by the Gaye estate.^[20] After Sheeran’s attempt to dismiss the lawsuit, Judge Louis Stanton decided that the case could not be thrown out and must go before a jury to decide the case on its merits, thus employing an intrinsic test as described above.^[21] Judge Stanton stated that, “[a] work may be copyrightable even though it is entirely a compilation of unprotectable elements.”^[22] Sheeran, on the other hand, claims that the song elements he was accused of copying, namely the chord progression and harmonic rhythm, were not distinctly unique enough to receive copyright protection.^[23] The plaintiff argues that when the two tracks are lined up against each other, “the rhythm section is almost identical,” and a jury should not have much trouble finding infringement.^[24]

After the recent decisions, only time will tell if creativity in the music industry will be able to thrive once again, and whether songwriters must remain fearful of finding themselves in litigation against plaintiffs’ often frivolous claims. For Sheeran, the hope is that songwriters can “get back to writing songs, rather than having to prove that [they] can write them.”^[25]