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Thinking Out Loud or Not Thinking At All?

Looks like artists these days are paying homage to Marvin Gaye in a sneaky underhanded kind of way - by creating derivatives of his artistic works without acknowledging him when credit where it’s due. We saw how Robin Thicke (among others) was forced to pay $7.4 million in an infringement lawsuit for misappropriating Gaye’s work in Thicke’s hit song “Blurred Lines”. Fast forward today, we have Ed Sheeran’s “Thinking Out Loud’ with a melody and chord progression strikingly similar to Marvin Gaye’s “Let’s Get It On” (hereinafter the “Work”). “Thinking Out Loud” was the first song to spend an entire year on UK’s Top 40, has been streamed over a billion times on YouTube and won song of the year for the 2016 Grammy Awards.

Heirs of Ed Townsend, the composer and co-writer of Marvin Gaye’s “Let’s Get It On” brought forth the infringement suit in federal court in the Southern District of New York. Townsend heirs allege that Sheeran copied the “heart” of the Work and repeated it continuously in “Thinking Out Loud”. Townsend heirs contend that the elements central to Gaye’s track formed the structure for the infringing work. Townsend heirs go on to state that “the melodic, harmonic, and rhythmic compositions of ‘Thinking’ are substantially and/or strikingly similar to the drum composition of [the Work].”

I guess what kills me the most about blatant infringers is how they go about stealing the works of others. It would be one thing to steal works of artists who never received any real fame or notoriety. It would be another thing to steal such a small portion of a famous artist’s work that only a musicologist or other music expert would be able to recognize the similarities. But the audacity – to steal from a highly acclaimed artist and to take from one of his biggest hits and to do it in a way that’s so obvious to anyone who hears, is incredible.

It’s so funny because when I heard the song, I loved it. I didn't know it well as I only caught it occasionally here and there. I thought it had an old fashioned feel to it, but it wasn't until I was listening to it one day randomly in the car and when it went off, I found myself singing the words to Marvin Gaye’s “Let’s Get It On” and then I began to wonder. For my brain to make the association subconsciously without even thinking about the similarities between the two songs, I just assumed that Ed Sheeran’s people received the green light from Marvin Gaye’s estate to borrow the work, because it was so obvious to me that it was a borrowed work. And low and behold, Mr. Sheeran is being sued for infringement.

Sheeran’s team has refrained from commenting on the issue, but my guess is their argument would involve something to the effect of the commonality of certain chords used in a particular type of genre of music and therefore lack of originality, which is a requirement for a valid copyright and the right to sue for infringement. They’d argue that Sheeran was influenced by the works of artists before him like so many other artists are, but his influence stopped short of infringement. The arguments (whatever they might be) would probably hold more weight from someone who hasn’t been accused for infringing the works of others prior to now. This is not Sheeran’s first infringement suit brought against him, and probably not his last if the Townsend heirs successfully litigate this claim, because I’m sure Gaye’s estate will be right behind them.

So I guess my questions to the Ed Sheeran’s of the world is this: Is it a grave inconvenience for you to go through the proper channels to borrow a work? Did you ask the rights holder for permission and were denied same and decided you just had to make the song anyway? Did you think we (and by we I mean the public and rights holders) wouldn't make the connection? Did you think your creation wasn't going to be a hit and therefore not the target of an infringement lawsuit? Or did you do a calculated infringement, and determine that the risk of the lawsuit did not outweigh the benefits of stealing the work? Inquiring minds would like to know.

A complaint has only just been filed. Nothing has been determined on the issue of infringement, but I think it’s fairly clear what happened here. But don't take my word for it. Listen to the song for yourself. You be the judge.

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