In May 2023 there was a big verdict in the world of copyright law. The decision? Ed Sheeran’s 2014 hit, “Thinking Out Loud,” did not infringe on Marvin Gaye’s and Ed Townsend’s 1973 hit, “Let’s Get It On.” As I will explain in a moment, from a musical standpoint, this was the only possible outcome. The copyright laws were applied as expected, and human composers in the United States are free to compose as they have been doing for centuries. But what about AI? Is it free to compose? Let’s explore.
My Musical Background
As many of you know, I spent most of my early professional life as a of commercial music. Fun fact: I won ASCAP’s 12th Annual Film & TV Music Award for “Top Television Series.” The next year, I won an ASCAP award for “Most Performed Television Themes.” I’ve written a lot of music for TV, so I have a pretty good understanding of copyright law in the context of what will and will not get you sued.
A Quick Musical Analysis
The plaintiff in this case claimed that Sheeran’s song had “striking similarities” to Gaye & Townsend’s work and that they shared “overt common elements.” If this was the way copyright law worked, the plaintiffs would have won.
While it’s true that the groove (meter and rhythm) of the background tracks and the orchestration (instruments and sounds) of both songs are strikingly similar, in the real musical world (and the world covered by copyright law) none of that matters at all. The case was decided based on the only part of a song that is covered by copyright – the melody and lyrics. In this case, the melodies and lyrics of both works are completely different. In fact, they are strikingly different.
What about the chord progressions? Aren’t they almost identical?
To a layperson’s ear, the answer is a clear yes. However, a paid, professional musicologist on a witness stand could (and did) make the argument that the chord progressions of the verses of both songs are not functionally identical.
The purely academic argument goes like this: The verses of “Let’s Get It On” are built on a progression that you would notate as I – iii – IV – V. The second chord in the progression, known as the three-minor (iii), is (in the key of D), an F#min, which contains the notes F# A C#. The chord progression for “Thinking Out Loud” is notated as I – I6 – IV – V. If the song was also in the key of D, the second chord, known as the one-six (I6), would be a D/F# (D major with F# in the bass), which contains the notes F# A D.
In an academic debate regarding functional harmony, you could argue that the second chord in each song serves a different function. In both songs, the I chord functions as the tonic, the IV chord functions as the subdominant, and the V chord functions as the dominant. Here’s where it gets debatable. In the interpretive world of functional harmony, the chords in question can be said to serve different musical functions. The I6 in Sheeran’s song functions as a tonic. The iii in Gaye & Townsend’s song functions as a relative dominant. So, musicologically speaking, even though the chords in both songs sound about the same and even share two of their three notes, they are technically different.
You Can’t Own Chords
For many people (the plaintiffs specifically), this technical argument is nonsense, and since the groove sounds the same and the chords sound the same and the rhythm sounds the same, “Thinking Out Loud” must be a rip-off of “Let’s Get It On.” Nope. You can’t own chord progressions. If you could, there would be no popular music.
For as long as there has been music, there has been the practice of “contrafact,” the use of another song’s chord progression to create a new song. Every 12-bar blues song ever written sits on the chord progression I – I – I – I – IV – IV – I – I – V – IV – I – (I or V). Not some 12-bar blues songs. All of them.
This practice is an important part of how new music is made. The chords to George Gershwin’s “I Got Rhythm” are so beloved and so important they are professionally referred to as “Rhythm Changes,” and an untold number of songs have been written on top of them. You’re probably familiar with the theme song from “The Flintstones,” but the same chords are used for “Anthropology,” “Dexterity,” “Moose the Mooche,” “Steeplechase,” and “Red Cross,” to name a few. If Ed Sheeran lost this case, hundreds of composers would owe royalties to the Gershwin estate. In fact, thousands of composers would owe royalties to thousands of other composers who came before them.
You Can Own Melody & Lyrics
The Ed Sheeran lawsuit was decided correctly because while you can’t own chords, or feel, or groove, you can own melody and lyrics. Sheeran’s melody was unique. His lyrics were unique. Case closed.
What About Intent?
All of the musicological analysis goes away when the copyright holder can prove that the creator of the new work intended to infringe, trade off, or profit from the original work. The difference between inspired by and blatantly and intentionally ripped off are triable issues of fact. When you intentionally rip off someone else’s work, you can be sued and can (and most likely will) lose.
AI-Generated Music
Which brings us to the biggest copyright issue of our day: music created by AI. At the moment, it is not copyrightable. According to the U.S. Constitution, Article I, Section 8, Clause 8: [The Congress shall have Power . . . ] “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Constitution grants these rights to people, not machines.
This is where the law is today, but is it where it should be? We’ve established that all music has derivative parts and original parts. We don’t let current composers profit from pre-existing chord progressions or rhythms or orchestrations. We do protect melodies and lyrics.
What if I prompt an AI to create a new melody and new lyrics over a backing track with striking similarities to “Let’s Get It On” or “Thinking Out Loud?” At the moment, it could not be protected by copyright, but it could easily infringe on either or both of these songs if the melody or lyrics were close.
There’s not much you can do
The copyright office holds hearings once in a while. But there’s nothing slated for 2024. You can check the official copyright.gov page. Other than that, I would suggest reaching out to your elected officials and letting them know how you feel.
Author’s note: This is not a sponsored post. I am the author of this article and it expresses my own opinions. I am not, nor is my company, receiving compensation for it. This article was originally published on May 7, 2023. It was updated to include a link to the official copyright office website on May 26, 2024.
ABOUT SHELLY PALMER
Shelly Palmer is the Professor of Advanced Media in Residence at Syracuse University’s S.I. Newhouse School of Public Communications and CEO of The Palmer Group, a consulting practice that helps Fortune 500 companies with technology, media and marketing. Named he covers tech and business for , is a regular commentator on CNN and writes a popular . He's a , and the creator of the popular, free online course, . Follow or visit .
