Did an Ed Sheeran hit steal from a Marvin Gaye classic? Trial to tell

Jury selection began Monday for the high-profile trial pitting Ed Sheeran’s “Thinking Out Loud” against Marvin Gaye’s “Let’s Get It On” — and the music industry is looking on in rapt attention.

Depending on the results, the case could have “major repercussions” for the music industry as a whole, with the potential to “restrict the creativity of all other musicians,” copyright experts tell the Star.

In a lawsuit first filed in 2017, the heirs of Ed Townsend — Gaye’s co-writer on the 1973 classic — alleged Sheeran’s Grammy-award-winning 2014 ballad had “striking similarities” and “overt common elements” with “Let’s Get It On.”

The trial is expected to last up to two weeks, presided over by 95-year-old judge Louis L. Stanton in his Manhattan federal courtroom. Sheeran, 35, is expected to testify.

Here’s what you need to know.

What’s Ed Sheeran being sued for?

Townsend’s estate claims Sheeran’s 2014 hit copied elements from “Let’s Get It On” — primarily its chord progression, which is nearly identical between the two songs.

Notably, because “Let’s Get It On” was penned before the 1978 changes to U.S. copyright law, only the contents of the song’s sheet music are protected, said Jeremy de Beer, a professor at the University of Ottawa’s Center for Law, Technology and Society.

“It’s not about whether any particular performance of those songs sounds the same to the average listener,” de Beer told the Star. “It’s about whether the elements of those songs, in terms of the sheet music, are the same.”

Specifically, both songs feature an almost identical progression of four chords, although Sheeran’s song uses a slightly different second chord in the sequence.

In a court filing, Sheeran’s musicologist and lawyers noted that over a dozen songs used the same chord progression before “Let’s Get It On,” arguing that chords, as core musical elements, can’t be copyrighted: “The two songs share versions of a similar and unprotectable chord progression that was freely available to all songwriters,” they wrote.

Meanwhile, the plaintiffs argue “Let’s Get It On” is more complex than its chord progression, that its syncopated rhythm and specific way the chords are used is enough to constitute copyright protection.

How might Ed Sheeran’s trial impact the music industry?

Should Sheeran lose his case, the trial would set a precedent for which elements of music can be copyrightable, according to Brett Caraway, a professor of media economics at the University of Toronto.

“There’s only so many chords and there’s only so many ways that you can arrange chords,” Caraway said. “If you treat every instance of a particular chord progression as a copyrightable work, in very short order, you will find that no more songs can be written without infringing somebody’s copyright.”

The stakes are “very significant for the songwriting industry as a whole,” de Beer added — a win by Townsend’s estate would likely embolden others to pursue litigation, potentially resulting in a “chill” in songwriting as artists grow wary of litigation.

Even though the case concerns U.S. copyright law, Canada’s music industry could also be impacted. Canadian composers or record artists doing business south of the border may be affected, for example, while similar, future Canadian cases could be influenced by results south of the border, even though Canada has a different copyright system, the experts say.

What other music copyright cases came before this?

In recent years, the U.S. has seen an “explosion” in these kinds of music copyright cases, Caraway said. Most notable is the 2015 case of Robin Thicke and Pharrell Williams’s hit “Blurred Lines,” which jurors decided infringed on the copyright of another Gaye song, “Got to Give It Up.”

The incident, which resulted in Thicke and Williams being ordered to pay over $5 million in damages, is a “very similar case from the plaintiff’s point of view,” said Caraway. The 2015 decision also hinged on the contents of Gaye’s sheet music and not their recordings.

Notably, that case was filed by Gaye’s estate. The lawsuit against Sheeran was filed by Townsend’s estate, a different plaintiff despite the focus on Gaye’s music.

Major artists are often hit with lawsuits and allegations of song stealing, though historically the vast majority settle before trial. Recent examples include Taylor Swift being sued over “Shake It Off,” which was dropped in 2022 after a five-year legal battle.

Wasn’t Ed Sheeran sued before?

Sheeran is no stranger to copyright disputes. In 2022, the songwriter won a legal battle over whether his 2017 hit “Shape of You” copied part of Sami Switch’s 2015 song “Oh Why.”

In a response posted to social media after the verdict, the artist said: “Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year, and there’s only 12 notes that are available.”

Sheeran went on to say we “have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim.”

“It’s really damaging to the songwriting industry,” he said.

With files from the Associated Press.

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