Ed Sheeran just walked away with a major copyright infringement victory. A New York jury determined that Sheeran’s song, Thinking Out Loud, was “independently created.” Because of the independent creation, the jury decided Sheeran did not infringe Let’s Get It On. Although a great outcome for Sheeran, a notice of appeal has been filed by Plaintiff Townsend, so we must wait to see what comes next.

(My disclaimer! This may feel long, but I promise you that I tried my best to make it a bit shorter than the 100s of reviewed court filed pages.)

Why I Might Care

With this decision, the jury and judge seem to go in the opposite direction of the Blurred Lines decision. They seem to set a tone that allows artists and music creating entities to continue to create with less fear of punishment from a court or jury…for now. 

1. The judge reiterated that certain musical building blocks are not protectable (think chord progression, keys of songs, harmonic rhythm).
2. The jury demonstrated that independent creation (which can and did cut off a legal claim of copyright infringement) can be proven by things such as the writing history of a defendant, similarities between songs of the defendant, and similarities between songs that are not the defendants.

It’s been 10 years since Williams v. Gaye (aka “Blurred Lines”). And the industry is still struggling with the ultimate fallout as the industry leans into the dissent’s (i.e., judge who disagrees with the other judges) position. That is, is a creative free to create when a decision allows a case for “copyright[ing] a musical style”?

With Sheeran, yet again, we seem to be in “musical style/groove” territory. Essentially, we are in territory of ideas, chord progressions, and keys and whether they as unprotectable music elements that when grouped together can rise to protectability.

Some Deets

In 1973, Marvin Gaye and Ed Townsend wrote Let’s Get It On. Fast forwarded to 2014, when Sheeran and Amy Wadge wrote the 11-country-chart topping, a UK best-selling record of all time, certified platinum, 1 billion times YouTube viewed Thinking Out Loud. Well, the Townsend heir, had a problem with this new music and filed a lawsuit against Sheeran, Atlantic Records, ATV/Sony Publishing, and Warner Music Group (who was later able to leave the suit) in order to receive a financial payout for actual damages or willful statutory damages (1:17-cv-05221-LLS).

Let’s go back to the classroom for a moment (hang in there with me, hopefully it will be worth your time). Per copyright law, copyright infringement exists when 4 conditions have occurred, 2 being where “(1) the defendant has actually copied the plaintiff’s work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectable elements of plaintiff’s.” Under copyright law, not all elements of a work are copyrightable and thus not protected (or able to win a lawsuit). “Copying [unprotected] aspects of a work is not wrongful, and thus not all copying is wrongful.” Works are substantially similar where “an ordinary observer, unless set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same…[o]n occasion…when faced with works ‘that have both protectible and unprotectible elements,’ [the] analysis must be ‘more discerning.’” But the above copyright analysis falls flat if someone can demonstrate that they “independently created” their work (i.e., without knowledge or exposure to another’s work; not copying either consciously or unconsciously). 

Townsend’s suit was ultimately based on the music composition (sheet music) music rather than the recording. This means we cannot listen to the music but must read the music – the protectable portions – to determine who wins. Townsend claimed “there can be no legitimate question that the melodic, harmonic, and rhythmic compositions in Thinking are not the product of independent creation. The melodic, harmonic, and rhythmic compositions of Thinking are substantially and/or strikingly similar to the drum composition from Let’s.” Well, this is what essentially damaged Townsend’s case as harmonies and rhythms were unprotected and the jury determined that the protected portions did not rise to level to compete with Sheeran and Wadge’s independent creation.

After a litany of motions (which I won’t throw at you, here) the BATTLE OF THE EXPERTS followed in an April 2023 trial. The trial lasted for 6 days, followed by another set of motions, and 3 hours of jury deliberation. It ended with Sheeran, the label, and the publishing walking away scotch free.

What Do I Think?

Since you asked…Practically…

1. As a music creative or entity consider documenting the creative process. You never know when it may come in handy if someone thinks you stole their creation, and it can make for great marketing and audience engagement. 
2. If you want to get technical and heighten your own protection, maybe consider the (or the development of) technical uniqueness of the music composition rather than possibly relying on what could be argued as common elements. Think creating compositions that aren’t easily associated with standard chord structures or widely used rhythms.
3. Finally, when considering whether to file an action ensure as much clarity as possible as it relates to what is owned of the music creation and what is protected.

Beyond practicalities, it could be a breath of fresh air to have a bit more confidence that with the existence of limited elements of music, not everything can be considered stolen because we are sharing the limited elements. On the other hand, there may be frustration around feeling that creative choices even of building blocks may not be protected. I guess it depends on the seat in which you sit to determine how you feel about this current outcome.