Ed Sheeran, the globally acclaimed singer-songwriter, found himself entangled in another copyright lawsuit, this time drawing parallels to the iconic Marvin Gaye song, “Let’s Get It On.” Just weeks after settling a previous claim regarding his song “Photograph,” Sheeran faced allegations of plagiarizing Gaye’s 1973 chart-topper for his Grammy-winning hit, “Thinking Out Loud.” This lawsuit, initiated by the heirs of Ed Townsend, Gaye’s co-writer on “Let’s Get It On,” immediately sparked debate about musical copyright and the extent to which common musical elements can be protected.
This legal action arrives on the heels of the landmark “Blurred Lines” case, where Marvin Gaye’s estate successfully sued Robin Thicke and Pharrell Williams for copyright infringement, securing a substantial $7.4 million judgment. In the current case, however, the situation appears markedly different. While similarities between “Thinking Out Loud” and “Let’s Get It On” were acknowledged upon the release of Sheeran’s song, the crucial question is whether these similarities constitute plagiarism or merely reflect the shared use of fundamental musical building blocks available to all songwriters.
To understand the core of the dispute, let’s listen to both tracks.
The resemblance wasn’t lost on listeners when “Thinking Out Loud” first emerged. Almost immediately, comparisons to “Let’s Get It On” surfaced, with some even creating mashups that seamlessly blended the two songs, demonstrating how effortlessly they could be superimposed upon one another.
Adding fuel to the fire, a video surfaced showing Sheeran himself transitioning into a chorus of “Let’s Get It On” during a live performance of “Thinking Out Loud,” utilizing the latter’s chord structure.
Ed Sheeran seamlessly transitions into Marvin Gaye’s “Let’s Get It On” during a live performance of “Thinking Out Loud,” highlighting the chord progression similarity.
This seemingly overt reference, however, is not an admission of guilt but rather a playful musical nod, highlighting a shared harmonic foundation. Sheeran’s defense rests on the argument that the similarities lie within a common, un-copyrightable musical element: a chord progression. To grasp this argument, we need to delve into some basic music theory.
The Essential Similarity: A Repeating Chord Progression
The primary point of contention is a four-chord sequence that repeats throughout both songs. To understand this, let’s define some key musical terms.
“Chords” are formed when three or more musical notes are played simultaneously. The relationships between these notes are called “intervals,” and the resulting sound is known as “harmony.” A “chord progression” is simply a series of chords played one after another. Both “Let’s Get It On” and “Thinking Out Loud” share the same chord progression, which forms the harmonic backbone of each song.
This shared chord progression spans two “measures” in 4/4 time. “Measures” are units of musical time, allowing us to count rhythmically in cycles, like “one, two, three, four” and repeat. 4/4 time signifies that each measure contains four beats, the most common time signature in popular music. This two-measure progression, therefore, encompasses eight beats, lasting approximately six seconds. Let’s isolate and listen to this progression.
Listen to the opening seconds of both “Let’s Get It On” and “Thinking Out Loud.” You’ll hear harmonies created by simultaneous notes, played rhythmically by instruments, often accompanied by percussion. This combination creates a “groove,” the rhythmic engine of the song that makes you want to move or tap your feet. Both Marvin Gaye and Ed Sheeran add vocal melodies and lyrics on top of this groove.
For now, let’s focus on the groove itself, specifically the harmony and rhythm that constitute its musical structure. This deeper examination will reveal the technical nature of the similarity.
The Chords in Isolation
The eight beats are structured around four distinct chords, each lasting for roughly two beats, and this cycle repeats continuously. (Sheeran’s initial four bars contain an extra chord at the very end, which can be considered a minor embellishment and not central to the core progression.)
We can refer to these four chords sequentially as “one, three, four, and five,” represented in music theory as Roman numerals: “I, iii, IV, and V.” The “iii” is in lowercase to denote a minor chord, while the others are major chords. These numerals correspond to “Do, Mi, Fa, and Sol,” the first, third, fourth, and fifth notes of a major scale, with “Re” (the second, or “ii”) being absent.
The I-iii-IV-V progression is an incredibly common and familiar sound in music.
Here is an example of this I-iii-IV-V chord progression, played on piano, with each chord lasting two beats.
[Listen to Audio Example of I-iii-IV-V Chords on Piano]
Adding Rhythm: Creating a Groove
Now let’s incorporate rhythm. We’ll add a bass line, mirroring the piano chords, and drums using a standard R&B drum pattern from music software.
[Listen to Audio Example with Bass and Drums Added]
This starts to resemble a groove, but it’s not quite the rhythm used in either “Let’s Get It On” or “Thinking Out Loud.” Remember, the chords are “approximately” two beats each. In the example above, they are played “straight,” meaning precisely two beats each.
In both “Let’s Get It On” and “Thinking Out Loud,” the chord durations are slightly varied. They typically land on beat one and then on the “and” of beat two. If you count “ONE and TWO and THREE and FOUR and,” you’ll notice the chords fall on “one” and the “AND” between “two” and “three.” This relates to the concept of “downbeats” and “upbeats.” Downbeats are the numbered beats (one, two, three, four), generally stronger and more emphasized. When upbeats (“and”s) receive some emphasis, it’s called “syncopation.” In this progression, the second (iii) and fourth (V) chords are played slightly earlier than a perfectly even rhythm.
Let’s adjust the rhythm, starting with the last chord (V), to demonstrate this subtle shift. You’ll hear the first three chords as before, but the fourth chord will arrive a bit earlier.
[Listen to Audio Example: V Chord Syncopated]
Now let’s syncopate the second chord (iii) as well.
[Listen to Audio Example: iii and V Chords Syncopated]
Does this rhythmic and harmonic pattern sound unique and protectable, or does it evoke countless other songs you’ve heard?
This adjusted rhythm is closer to the actual feel of both songs. You could sing large portions of both “Let’s Get It On” and “Thinking Out Loud” over this repeating six-second accompaniment.
By reaching this point, you’ve essentially covered a day’s worth of material in a “Music Theory 101” course. Such courses dedicate semesters to exploring the fundamental building blocks of music, the techniques, rules, conventions, and systems that underpin Western music’s aesthetic, evolving since before Bach’s era.
Just as architect Frank Gehry wouldn’t copyright marble slabs or sheet metal, even though he’s known for using them in unique ways, basic musical building blocks are not subject to copyright. Architecture and music both rely on common starting points and aesthetically pleasing, functional materials. Intellectual property in music begins at a level beyond these foundational structures and materials that form the basis of songs, just as in buildings.
To illustrate the commonality of this musical framework, consider other songs built upon it. If you listened to the mashup earlier, you might anticipate this.
Slowing down the four chords slightly reveals another familiar tune:
[Listen to Audio Example: Chord Progression Slowed Down 1]
Transposing the progression down a key, while maintaining the I-iii-IV-V structure, yields yet another recognizable melody:
[Listen to Audio Example: Chord Progression Transposed Down]
Further slowing the tempo, while keeping the same chords and proportions, leads to:
[Listen to Audio Example: Chord Progression Slowed Down 2]
These examples demonstrate that the “Let’s Get It On” chord sequence, while present in “Thinking Out Loud,” is far from unique. Sheeran’s song is a closer match rhythmically, but the underlying material is fundamentally common. This chord progression serves as the foundation for numerous songs.
Consider these additional examples:
- I Won’t Last A Day Without You, Carpenters
- Turn Around, (popularized by Harry Belafonte and many others)
- Captain Candy, Anthony Newley
- Perhaps Love, John Denver and Placido Domingo
All of these songs utilize the I-iii-IV-V chord progression prominently. While they may not repeat it as relentlessly as “Let’s Get It On” or “Thinking Out Loud,” their use is substantial enough to demonstrate the point: this chord progression is public domain. It’s a framework, not a unique, copyrightable musical work.
The Limited Palette of Pop Music
While there are theoretically twelve musical notes, the practical options for unique chord progressions in pop music are considerably more constrained. Though hundreds of chords exist, only a small fraction are readily accessible and appealing to pop songwriters at any given time. It’s not an exaggeration to say that, for most pop composers, the readily available chord choices are quite limited. Both “Thinking Out Loud” and “Let’s Get It On” primarily utilize just six chords each.
The lawsuit attempts to circumvent this reality by arguing that “Thinking Out Loud” takes the “heart” of “Let’s Get It On.” This argument is flawed in several ways. Firstly, it presumes that the groove is the definitive “heart” of “Let’s Get It On.” Secondly, it implies that other elements of both songs are less significant. The plaintiffs aim to establish that “Thinking Out Loud” could not have been created independently of “Let’s Get It On.”
This strategy is strategically clever. Copyright infringement is binary – it either exists or it doesn’t. However, by emphasizing the perceived importance of the “Let’s Get It On” groove to the success of “Thinking Out Loud,” the plaintiffs hope to maximize the potential share of Sheeran’s profits they could be awarded.
However, this line of reasoning is unreasonable because the shared element is:
- A brief, generic musical idea
- Not unique to “Let’s Get It On”
- Present in countless other songs
Therefore, the core harmonic element is not owned or copyrightable.
Beyond the Groove: Melody and Compositional Integrity
Furthermore, if these songs possess a “heart,” it’s certainly not just the groove. Consider the other, arguably more significant, aspects of these songs.
The melodies of “Thinking Out Loud” are skillfully crafted and intimately connected to the lyrics. Each musical phrase builds upon the last, creating a natural flow that enhances the storytelling and emotional arc of the song. The lyric and melody together form a substantial and independent work, capable of standing on its own and potentially being supported by various other chord progressions.
Listen to this疊合 of both verses from “Thinking Out Loud” played simultaneously. Notice how well they align. This layering works because the melodic shape is consistent across verses. This melody possesses structural integrity. While performers may introduce slight variations or embellishments, the core melodic essence remains intact and meaningful.
[Listen to Audio Example: Layered Verses of “Thinking Out Loud”]
The same structural integrity is evident in the choruses. Here are all three choruses of “Thinking Out Loud,” including the “We found love right where we are” tag, layered together.
[Listen to Audio Example: Layered Choruses of “Thinking Out Loud”]
Again, a deliberate and substantial melodic composition is apparent. “Thinking Out Loud” is not dictated or defined by the groove it shares with “Let’s Get It On.” In fact, altering the accompaniment groove, even to a more generic one, would leave the song largely unaffected. The accompaniment is not its “heart.” The true value of “Thinking Out Loud” lies in its melodic and lyrical content – catchy, clever, appealing, easily singable, and entirely composed by Ed Sheeran.
Crucially, “Thinking Out Loud’s” melody and lyrics share virtually nothing of consequence with “Let’s Get It On.” Therefore, arguing substantial musical similarity is perplexing. In typical music plagiarism cases, melodic similarities are the primary focus. Astonishingly, in this case, the plaintiffs might avoid any substantive discussion of melody or lyrics because they are so demonstrably dissimilar.
Predictably, the plaintiffs will likely resort to less significant, even trivial, arguments. Musicologists hired by the plaintiffs might point out superficial similarities like “both songs have pauses between lyrical phrases” or “both songs follow a Verse-Verse-Chorus-Verse-Bridge-Chorus structure.” However, these structural elements are commonplace in pop music. Such observations, while technically true, are musically insignificant in the context of copyright infringement.
Does “Let’s Get It On” Have a Superior “Heart”?
“Let’s Get It On” is an iconic and chart-topping song. However, in terms of formal composition, it’s arguably more of a framework. It has a structure, but it’s relatively loose. Its melodies, while familiar due to the song’s immense popularity, are more improvisational and fluid. Most listeners can readily sing the opening line, “I’ve been really trying, baby…” and join in on the chorus, “Let’s get it on,” and perhaps, if they are deeply familiar with the song, add “We’re all sensitive people…” But much of the performance is characterized by an ethereal, stylized, and improvisational quality. These are part of its charm, but they bear no resemblance to “Thinking Out Loud.”
“Let’s Get It On,” like “Thinking Out Loud,” is not primarily defined by its groove. The groove is fitting and contributed to the song’s iconic status, but it’s not the driving force.
Consider “Let’s Get It On” without its distinctive warbly funk guitar. Would the groove alone carry the song? It’s unlikely the studio musicians during the session thought, “This groove is revolutionary! Forget Marvin’s vocals, let’s just release the groove!” Marvin Gaye’s vocal performance and lyrical content, centered on themes of sensuality and connection, were essential. That is arguably the “heart” of “Let’s Get It On.”
Is “Thinking Out Loud” a completely original, unprecedented song? No. It’s a conventional pop song employing familiar and pleasing musical devices, including the chord progression and rhythmic feel it shares with “Let’s Get It On.” Songs themselves are copyrightable, but not every constituent element within them is. Basic musical building blocks like chord progressions are the very materials from which “hooks” and hit records are constructed. These foundational elements, often with a unique twist, are what audiences seek in pop music.
Copyright law is not intended to stifle creativity by protecting these fundamental building blocks. To do so would be detrimental to the evolution and vitality of popular music. Cases like this, based on such tenuous claims of infringement, should be dismissed to safeguard musical creativity and the free flow of musical ideas. Ed Sheeran, in this instance, likely did not infringe upon any protectable copyright of “Let’s Get It On.”
