Ed Sheeran won a copyright infringement trial on Thursday, and so has music itself, at least according to some music copyright experts.
With Sheeran coming away victorious in the much-publicized “Thinking Out Loud”/ “Let’s Get It On” trial, music copyright experts tell Rolling Stone they’re hopeful the decision will chill what they describe as frivolous lawsuits going forward, as the verdict tells those looking to sue that winning out isn’t so simple.
“It will give people a little bit more comfort in terms of feeling they might not get sued and lose at every turn,” says Audrey Benoualid, a partner at the law firm Myman Greenspan Fox Rosenberg Mobassar Younger and Light, one of the most prominent firms in the music business. “I think a lot of people would be happy here; a lot of people in music think the ‘Blurred Lines’ case didn’t come out the right way.”
Joe Bennett, a forensic musicologist and professor at the Berklee College of Music in Boston, agrees, saying that the decision further pushes back on the notion that artists can take ownership over mere chord progressions.
“Hopefully this could be the beginning of the end of these spurious lawsuits based on musical ignorance,” Bennett says. “These cases are based on a glitch in music phenomenology. I get dozens of calls from hopeful plaintiffs every year telling me one of their melodies appears in a Justin Bieber song and he must’ve copied it, but that’s just not true. These coincidences happen all the time.”
The trial concludes six years of anticipation after the estate of Ed Townsend — who co-wrote “Let’s Get It On” with Gaye — sued Sheeran in 2016. As CBS News reported, Ben Crump, representing Townsend’s estate, said the case was about giving credit where needed and about ensuring Black artists’ work is recognized. “For far too long, Black artists have created, inspired and spread music all around the world,” Crump said. “And Ed Townsend’s family believes artists’, like Mr. Sheeran’s infringement of Black artists, is merely another example of artists exploiting the genius and the work of Black singers and songwriters.”
Crump had previously described a video of Sheeran transitioning between “Let’s Get It On” and “Thinking Out Loud” as a “smoking gun,” proving the claims. During the trial, Sheeran played the “Thinking Out Loud” chords on his guitar to demonstrate his work to the jury and try to prove he didn’t take from “Let’s Get It On.” He also said during the trial that he would stop writing music if found liable of plagiarism. He added that the song was more reminiscent of Van Morrison.
In some ways, this latest trial was a tie-breaker between other notable copyright trials over the past decade. The “Blurred Lines” decision, which ruled in favor of Marvin Gaye’s estate and declared the song had infringed on Gaye’s track “Got to Give It Up,” is one of the most notorious decisions in recent history for music copyrights. The ruling made artists more cautious about their work, looking to ensure their tracks couldn’t be interpreted as too similar to other pieces.
Since then, however, there’ve been multiple other cases that ruled more favorably toward inspiration over infringement, including the famed “Stairway to Heaven” and “Dark Horse” trial that gave victories to defendants Led Zeppelin and Katy Perry.
Howard King, who represented Robin Thicke and Pharrell in the “Blurred Lines” trial, tells Rolling Stone that while he agrees with the Sheeran jury’s decision, it’s not part of an overall shift on how these cases may result.
“It’s hard to draw a trend line because every jury is different,” he says. “You had a jury with ‘Blurred Lines’ that went one way, you had a jury here that went another way. There’s no assurances given to any of us about what happens with the next jury. The question is, what claims should be stopped by a judge before they ever get to a jury? I’m not sure there’s a trend now but there’s certainly a heightened awareness of copyright infringement claims, like Zeppelin.”
Peter Anderson, who represented Zeppelin in their trial, told Rolling Stone in 2021 that he thought their case pushed back on the notion set within “Blurred Lines.” (Anderson declined to comment on the record this week regarding the Sheeran/Townsend case.)
“The ‘Blurred Lines’ case showed that if the Gaye family can successfully sue over a song where the notes aren’t the same, you could get sued on anything. But if ‘Blurred Lines’ opened Pandora’s box, I think ‘Stairway to Heaven’ closed it back,” Anderson previously said. “Getting an expert just to say that two songs both have a fade ending, there’s two of the same notes in a sequence, and they’re both sung by a male isn’t enough.”
As Bennett says, the very nature of the complaints against Sheeran and many other copyright infringement cases comes down to focusing on similarities between songs without consideration that similarity may not be enough to prove a song was ripped off.
“The lawyers are relying on juries’ ignorance of songwriting practice, and the natural tendency for most people who don’t know this field is to equate similarity with copyright infringement,” he says. “And you see this all the time. In the media, when these stories come out, outlets always ask their readers, ‘how similar are they?’ But that’s the wrong question.”
A victory for Sheeran may be a positive sign for artists and songwriters worried about accusations of plagiarism, but the notion that lawsuits will stop may not be true either given an already litigious culture.
“I think Pandora’s box was already opened, and I don’t think there’s an easy way to fix the problem,” Benoualid says. “It’s a fact-specific analysis that has to be done each time. You’re talking about art. This is going to be a part of the culture forever, but I hope that when these cases arise, they give us the guidance to reduce the number of suits a little.”
As King — who says neither “Blurred Lines” nor “Thinking Out Loud” should’ve gone to trial — says: “There are copyright infringement cases over music filed every day of the week. So there’s no shortage of plaintiffs’ lawyers willing to take a flyer and hope for a settlement,” he says. “I don’t think any plaintiff’s lawyer really wants to go to trial on a copyright infringement. The question is whether potential plaintiffs’ lawyers working on a contingency fee will now be more careful about what cases they pursue.”
Part of what makes cases like Sheeran’s so public and so consequential is how infrequently they go to trial. Copyright claims often reach settlement before the public or press would ever hear about the claims. This allows artists to avoid potentially unpredictable juries from deciding the fate of their music. On the other hand, the idea that a suing party could get even a settlement if their songs sound similar enough (assuming a judge won’t dismiss the claims outright) could help keep the cases coming too.
“It’s the cost of doing business,” Benoualid says, noting that the unpredictability of juries makes it much safer to settle early rather than risk it at a trial. “A lot of artists don’t want to go on the stand, and a smaller payout might be worth the peace of mind to them.”
Without naming specific artists or song, Benoualid says she’s had several copyright claims hit her desk regarding prominent hit songs that ended up in a settlement. Most of the claims, she says, were “absolutely egregious.”
As King says: “It’s easy to stand back and say we can stop the deluge of bogus claims by defending these to trial, but then you get down to the individual artists who ask, ‘do I want to be the one who spends half a million, a million or $2 million and days of my time to vindicate and deter further plaintiffs, Or am I going to pay a settlement and move on?’”
Those factors considered, Bennett praised Sheeran for going to trial instead. “He stood up for himself in the U.K. high court and he’s now standing up for himself in New York,” Bennett says. “It’s a massive hassle, and it probably would’ve been easier to make a payment behind the scenes to the publisher. But he approached this with integrity and honesty, and hopefully that will make something of a contribution to make lawsuits like this less frequent.”
Whether or not that’s the case, Bennett says it’s at least a victory for now. “As a forensic musicologist, I’m interested in ethical behaviors and getting to the truth. My other community, the whole Berklee songwriting community as the next generation of artists, all those folks are going to breathe a sigh of relief,” Bennett says. “I think lawyers will as well. Because none of this should get as far as it does, this case should never have made it all the way.”
From Rolling Stone US
