The Absurdity of Ed Sheeran's Latest Lawsuit

Did the red-headed Brit copy Marvin Gaye?

Apr 27, 2023

Every now and again I like to recommend another music newsletter. Today I’m shouting out Zappagram, a weekly newsletter run by the inimitable Chris Zappa. Despite the name, Zappagram has nothing to do with Frank Zappa. It’s a one stop shop for all things music, whether that be new releases, birthdays, or interesting news. Here are three blurbs from the most recent newsletter:

Coachella Fined $117,000 for Breaking City Curfew All Three Nights
The festival was supposed to wrap up by midnight Pacific on Sunday night, but Frank Ocean’s headlining set went over by roughly 25 minutes. Additionally, Coachella also broke the 1:00 a.m. Pacific curfew on Friday and Saturday by 25 minutes and 22 minutes, respectively. [Pitchfork]
Cassette Tape Sales at 20-Year High
The spike has been driven by recent releases from major acts such as Arctic Monkeys, Harry Styles and Florence + the Machine. [NME]
How Cities Are Celebrating Taylor Swift’s Eras Tour Stops
City officials have been pulling out all the stops to welcome the superstar. [Billboard]

In addition, Zappagram is a podcast. So if you hate reading - which would be a shock if you’ve made it this far - you can listen along each week instead. Anyway, you should subscribe. I’m more in touch with everything going on in music since I did.

Ed Sheeran is Not a Thief

Over the last few months, I’ve had two posts discussing why musical copyright terms are much too long. In summary, copyright in the United States was first set in 1790 at a term of 14 years with an option to renew for an additional 14 years, but it has slowly been stretched to the life of the author plus 70 years. In my post “How Long Should Songwriters Own Their Songs?”, I created a hypothetical for why that term length is insane.

That said, I still think the current term is too long. Much of my distaste comes from the fact that 70 years post-death is a long time. The large, large majority of creative works aren’t making any money just one year after their creation. So that 70-year post-mortem term will likely just benefit the heirs of the most successful artists. Not only that, but it can also come at the expense of future artists … [I]f Adele lives to the age of 77, then in the year 2130 either her descendants or some corporation that purchased her copyrights will be able to prevent a young rapper from sampling her 2011 hit “Rumour Has It”. I think that is a net negative for creative pursuits.

But we actually don’t need hypotheticals to illustrate how silly copyright terms of this length can be. The New York Times recently reported that jury selection was beginning for a trial to see if Ed Sheeran’s “Thinking Out Loud” was copying Marvin Gaye’s classic “Let’s Get It On”. Why do I say this lawsuit is silly? Two reasons.

“Let’s Get It On” was written by Ed Townsend and Marvin Gaye. Neither Gaye nor Townsend is living. According to the Times, “The case was filed in 2017 by Townsend’s daughter, Kathryn Townsend Griffin; his sister, Helen McDonald; and the estate of his former wife, Cherrigale Townsend.”
Because “Let’s Get It On” was written before 1978, the only copyrightable parts of the song are whatever was included in the sheet music deposited to the copyright office when it was released in 1973. The four main items captured by sheet music are time signature, melody, chords, and lyrics. These two songs clearly do not have the same lyrics. In addition, the melodies are distinct and time signature is much too broad a concept to claim ownership over. The success of this lawsuit will hinge on the fact that the chord progressions are nearly identical.

In summary, nobody directly involved with the writing of this song filed the lawsuit. In the case of the estate of Ed Townsend’s deceased ex-wife, the connection to the song is tenuous at best. That doesn’t matter, though. Copyright transcends death. Since Mr. Townsend died in 2003 his estate can continue to file lawsuits until 2073, when I - a strapping, 27-year-old man - will be 78.

Furthermore, the ownership of a chord progression is a thought almost too ridiculous to entertain. Pop songwriters have been reusing the same chord progressions for the last hundred years. Here’s a video of the comedy troupe Axis of Awesome playing 46 popular songs using the same progression.

Should you claim Train’s “Hey, Soul Sister” ripped off Journey’s “Don’t Stop Believing” because they use the same four chords, I would take you as seriously as I’m taking this lawsuit.

I’ll close with a few quotes that pop critic Jack Hamilton shared on Twitter about Sheeran’s trial as they aptly sum up most of my feelings:

the fact that it's so often artists' estates that are doing it makes it so much more depressing, too. it's not even the creators, it's people who’ve inherited the quote-unquote ownership
ed townsend’s heirs are probably doing just fine off royalties from fucking "let's get it on," one of the most popular songs in history
I mean OBVIOUSLY [“Thinking Out Loud”] sounds like let's get it on and is intended to. it's a clumsy homage but it's not plagiarism
a song can be derivative and unoriginal and boring as hell without being theft. happens all the time actually

A New One
"if i were a fish" by corook ft. olivia barton
2023 - Bedroom Folk

During the 20th century, non-musical media has often helped propel songs from obscurity into the limelight. In the 1960s, maybe that meant getting a slot on Dick Clark’s American Bandstand. In the 1980s, maybe that meant getting put in regular rotation on MTV. These days it means getting your song to go viral on TikTok. But this mechanism is very different. Whereas in the days of yore there was a gatekeeper that got to choose which things got propelled forward, TikTok often seems like an unpredictable lottery. corook and olivia barton recently won that lottery.

On April 11, corook posted a cute little acoustic number with the following caption: “I was having a very emotional day, feeling insecure and out of place. So I cried to Olivia and after feeling through it, we wrote this song in 10 minutes to remember the joy in being different 🐸 happy Tuesday.” After getting 13 million views, the duo rushed out a studio version of the song. Being talented is important - and these two pack a talented punch - but a little luck goes a long way.

An Old One
"Romeo and the Lonely Girl" by Thin Lizzy
1976 - Bluesy Rock

Last week, my cousin and I were talking about the most underrated “classic rock” song. I put the term “classic rock” in quotes because it is nearly devoid of meaning at this point. But let’s assume it means electric guitar music in 4/4 time released between 1967 and 1992. Using that definition, we kept coming back to Thin Lizzy.

Mostly known for their ubiquitous romp “The Boys are Back in Town”, the group has unexpected depth to their catalog. That depth is demonstrated on “Romeo and the Lonely Girl”, a rock n’ roll revamp of Shakespeare’s famous tale. There are few classic rock groups with guitar solos as memorable and vocals as impassioned.

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