No Inspiration Without Payment: Ed Sheeran Sued For Two Songs Sounding Too Similar To Old Songs

from the that's-not-how-copyright-is-supposed-to-work dept

There's a fairly long history of lawsuits over songs sounding too "similar" -- from the lawsuit over George Harrison's "My Sweet Lord" sounding too much like "He's So Fine" to the Verve getting sued by The Rolling Stones for the hit "Bittersweet Symphony" sounding similar to the Stones' "The Last Time." But after last year's verdict in favor of Marvin Gaye's estate in the "Blurred Lines" case, the floodgates seem to have opened, with a bunch of similar lawsuits over songs that sound vaguely similar, but not much more. A couple of months ago, in a bit of a surprise, Led Zeppelin actually won its case over whether or not it had infringed on someone's copyright in "Stairway to Heaven," so there's at least some hope that not every "similar sounding" song will face a copyright lawsuit -- but even then the arbitrariness of these decisions seems problematic.

It's especially problematic when the songs are clearly different, even if one was inspired by the other, or was written as sort of an homage to the original. It used to be that this kind of building on the works of others was a sign of flattery and something people should be happy about. But with millions of dollars being thrown around thanks to statutory damages, big lawsuits seem to be the answer instead. Earlier this week, hit pop singer Ed Sheeran was hit with a new lawsuit also claiming that he infringed on an old famous Marvin Gaye tune, "Let's Get It On." This time, it's not the Gaye Estate that's suing (as in the "Blurred Lines" case), but rather the estate of a songwriter on that song, Ed Townsend. The accusation is that Sheeran's hit "Thinking Out Loud" infringes on "Let's Get It On." Here are both tracks:
The bass lines are definitely similar, but that's really about it. They're pretty different songs in almost every other aspect. And that bass line is not exactly the most complex or inventive bass line. Of course, people definitely noticed similarities in the bass lines early on. Many reviews mentioned it, and (of course) someone created a YouTube mashup (which I think is actually better than the Sheeran original, but that's a personal preference...).
But of course you can mashup lots of songs that way and it hardly means copyright infringement.

Since no one else reporting on this has actually shared the filings, I thought I'd fix that. You can read it here or embedded below. There's not much detail in there other than the claim that "Thinking Out Loud" has copied "the heart" of "Let's Get It On." It claims that "the melodic, harmonic and rhythmic compositions" are "substantially and/or strikingly similar" between the two songs. They are, of course, demanding statutory damages, because why not?

Meanwhile, this is the second lawsuit of this nature against Sheeran in just the last few months. In early June, he was sued over another one of his hit songs, "Photograph," with the lawsuit claiming it was a note-for-note copy of the song "Amazing" by Matt Cardle (written by the plaintiffs in that lawsuit, Martin Harington and Thomas Leonard). In that case, again there are similarities between the two, but they're basically both just guitar ballads, not all that unlike tons of singer/songwriter guitar ballads with pretty basic progressions.

But, really, this whole focus on these kinds of lawsuits seems really damaging to the way music is created. Being inspired by other musicians or wanting to write something that "feels like" another artist is pretty standard. And it should never be copyright infringement. These are all different songs and they should stand and fall on their own power, not because of some stupid copyright claim. But, of course, thanks to the recording industry ranting on and on about "ownership" of "intellectual property," combined with the massive rewards for winning a copyright lawsuit (thanks to statutory damages), this is what we end up with -- a world where being creative in a manner that is inspired by someone else, or in homage to them, is called "theft" by some. That seems like it's going to create a massive chilling effect on musicians and songwriters and the way they create music.



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  • identicon
    Anonymous Coward, 11 Aug 2016 @ 9:49am

    Abandon all hope. This and other copyright abuses will not end before our civilisation falls. It will only get worse until no culture is allowed anymore anytime anywhere by anyone. No counter measure will stop this without dismantling the civilisation, because the systems all favour those who would profit from such abuses.

    reply to this | link to this | view in chronology ]

    • icon
      trparky (profile), 11 Aug 2016 @ 2:56pm

      Re:

      How about these "musicians" and "artists" come up with something original? Oh, I forgot... that's much too hard.

      And that's why music of today generally sucks. I have to go back to 80s and 90s to find anything decent to listen to. Everything made after the 2000s is pure garbage, it's nothing but bubblegum pop shit.

      reply to this | link to this | view in chronology ]

      • icon
        JMT (profile), 11 Aug 2016 @ 6:18pm

        Re: Re:

        Says the person who has absolutely no idea how the creative process works. ALL music is based in some way on what has come before, the 80's and 90's are no exception. It's also entirely possible to make music that sounds a bit like something else without any direct inspiration, simply because it's what sounds good.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 11 Aug 2016 @ 6:41pm

        Re: Re:

        And that's why music of today generally sucks.

        You know that's what literally every generation says about music, right?

        reply to this | link to this | view in chronology ]

        • icon
          JoeCool (profile), 11 Aug 2016 @ 7:14pm

          Re: Re: Re:

          I never have. I have stated that rap mostly sucks, and I stand by it, but I still like much of the music today as much or more than music from my own generation. I have a set of tastes, like most folks (which doesn't include rap), but those tastes can be satisfied by today's music just as easily as by the 70's and 80's music I remember so fondly.

          reply to this | link to this | view in chronology ]

          • icon
            PaulT (profile), 11 Aug 2016 @ 11:53pm

            Re: Re: Re: Re:

            Whereas some of your peers would say that rap music is the best, although some would prefer the stuff made in the 80s compared to the modern stuff :)

            Funny, these discussions always bring arguments about relative quality of music, and the only thing that's ever correct is that it's so subjective that nobody's right or wrong.

            reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 11 Aug 2016 @ 11:51pm

        Re: Re:

        "Everything made after the 2000s is pure garbage, it's nothing but bubblegum pop shit."

        Yeah, nobody makes anything but bland pop tunes today, and they never *ever* made bubblegum crap in the 80s and 90s.

        Oh wait, you're either deluded or lying, because neither of those is true! I'll trade you plenty of current bands for the girls and boy bands of those decades, and I grew up in the 80s...

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Aug 2016 @ 12:37am

        Re: Re:

        How about these "musicians" and "artists" come up with something original?

        and
        I have to go back to 80s and 90s to find anything decent

        Talk about wanting your cake and eating it, you demand original music, and then complain that it does not sound like the music you grew up with.
        (By the way you need to go back to the 60's and 70's to find good music).

        reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 12 Aug 2016 @ 8:13am

        Re: Re:

        How about these "musicians" and "artists" come up with something original? Oh, I forgot... that's much too hard.


        It really is, and always has been. Culture always builds on existing culture.

        "Your manuscript is both good and original; but the part that is good is not original, and the part that is original is not good."
        -- attributed to Mark Twain

        reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 12 Aug 2016 @ 5:01pm

        Re: Re:

        Congratulations trparky, you are now an old fart. Your parents said it about your generation's music, and your grandparents said it about your parents' music.

        Just a sign you're over the hill.

        reply to this | link to this | view in chronology ]

  • identicon
    Stosh, 11 Aug 2016 @ 9:57am

    Tune in ANY Country & Western radio station and find two songs that DON'T sound exactly the same....

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 11 Aug 2016 @ 10:03am

    Wipe 'em all out

    Need to find the originator of the 12-bar blues and just sue everybody else.

    Yeah... we've fallen off the cliff - and there is no hope for a soft landing.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 11 Aug 2016 @ 10:04am

    "Photograph"

    I'm surprised PETA isn't suing him on behalf of a monkey.

    reply to this | link to this | view in chronology ]

    • identicon
      David, 11 Aug 2016 @ 12:55pm

      Re:

      They'll probably sue The Monkeys these days for "trademark infringement". And while they are down, the estate of St Paul (that's the Vatican, right?) will sue over "Then I saw her face, now I'm a believer".

      And then PETA will sue Herman and the Hermits for patent infringement on behalf of the reptiles as representatives of non-mammals over "No Milk Today". And the Vatican will get them over the "Hermit" trademark.

      Man, those two are a dream team.

      reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 11 Aug 2016 @ 10:09am

    Too Similar ?

    Is Copyright and Imaginary Property too similar to a Protection Racket ?

    Which came first?

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 11 Aug 2016 @ 10:15am

    An example of similarity

    I remember a movie, I think it was Hollow Man (an invisible man plot, staring Kevin Bacon). But I can't swear to it at the moment. A prominent line in the theme music, often repeated throughout the movie, kept setting off recognition in my head that it sounded like the most of the first line of the old hymn "A Mighty Fortress Is Our God". But the music would go a different direction before it got to the end of the music of the first line. But it was at least several bars worth of striking similarity.

    Was the movie theme music inspired by the one line from the hymn? I highly doubt it.

    reply to this | link to this | view in chronology ]

    • identicon
      Jason, 11 Aug 2016 @ 10:30am

      Re: An example of similarity

      I remember a very similar experience when I saw the old, animated Lord of the Rings for the first time. The main theme made me think of the theme from Star Trek IV every time I heard it, the first few bars seemed so similar. Sure enough, when the credits rolled, I saw Leonard Rosenman's name, who also (much later, obviously) scored Star Trek IV. It was different music, but it had a very similar flavor in the opening notes.

      reply to this | link to this | view in chronology ]

    • identicon
      TripMN, 11 Aug 2016 @ 10:31am

      Re: An example of similarity

      But then there are cases where the music was purposefully based on previous work. John WIlliams' Imperial March is based on Holst's Mars from The Planets.

      I studied music in school and there was a saying derived from the idea of Seven Basic Plots for stories

      "There are seven original melodies in the world, everything else is just derivation."

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 11 Aug 2016 @ 6:49pm

      Re: An example of similarity

      A prominent line in the theme music, often repeated throughout the movie, kept setting off recognition in my head that it sounded like the most of the first line of the old hymn "A Mighty Fortress Is Our God".

      There is also a (modern I think) hymn that includes a seven note phrase of the Halo: Combat Evolved theme, note for note. Not sure if coincidence.

      reply to this | link to this | view in chronology ]

  • icon
    scotts13 (profile), 11 Aug 2016 @ 10:18am

    Melancholy Elephants

    http://www.spiderrobinson.com/melancholyelephants.html

    And so it begins. For those that don't follow the link, it's a science fiction story (and a poignant one) about this exact situation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Aug 2016 @ 10:20am

    More ways to be sued must be great from labels trying to persuade indie artists. Sign up with us, and we won't sue you if your music "sounds like" anything we own. Worried about getting sued? Bet you'll be glad we have high priced lawyers...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Aug 2016 @ 10:20am

    I agree with most of this post but the part about Zeppelin is kind of clashing tonally, since they're notorious plagiarists and almost certainly should have lost the Stairway case (I mean, they toured with Spirit and then claimed to have never heard the song) if they weren't richer than god. There's "sounds similar to" and there's "this band has gotten dinged several times for outright ripping off older songs wholesale and playing them slower."

    reply to this | link to this | view in chronology ]

    • identicon
      David, 11 Aug 2016 @ 1:36pm

      Re:

      If mathematics worked like music does these days, there'd only be fairly trivial proofs not relying on prior results.

      I don't think that it is an accident that rap "music" has no recognizable melody.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 11 Aug 2016 @ 8:33pm

        Re: Re:

        I don't think that it is an accident that rap "music" has no recognizable melody.

        What are you saying, that it's because of copyright?

        reply to this | link to this | view in chronology ]

        • identicon
          David, 11 Aug 2016 @ 9:07pm

          Re: Re: Re:

          Well, you can forego the lawyer (unless you are also doing drugs). That's an advantage. True, you can also forego the drummer but those are a dime a dozen. Lawyers are not any rarer but more expensive. It's like rats rather than rabbits. And it's easier to get along with a drummer than a lawyer.

          reply to this | link to this | view in chronology ]

  • icon
    Nathan F (profile), 11 Aug 2016 @ 10:52am

    Why haven't any of these music sounds like lawsuits laid out the scores side by side and compare the actual written notes and chords?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2016 @ 12:43pm

      Re:

      Eh, music notation is mostly standardized, but it's still at the mercy of subjective analysis. There are a lot of ways to write the same melody. You might interpret a melody as being in C major starting at the sixth interval, while I would think of the same melody as in A minor starting at the root. We'd both be correct, especially if we're looking at the melody in isolation from the surrounding harmonies/chord progressions.

      Same goes for chords. To continue the above example, what you might call a C6 I would call an Am7. Again, neither of us is wrong. One way is definitely more conventional and more readily understood by your players, but that doesn't really make it more correct, just more expedient.

      It's the intervals between all the notes that really matter. The same melody can be played in any key you want, and the pitch of the notes would change as a whole, but the feel of the melody wouldn't change much at all (within reason, of course). It's not important to know that a melody goes C-D-E, it's important to know that the melody goes [note]-[whole tone up]-[whole tone up]. But I think that kind of nuance would be hard to convey to a lay person. You'd basically have to send them to music theory classes before they could even comprehend what they're looking at.

      reply to this | link to this | view in chronology ]

  • icon
    Gwiz (profile), 11 Aug 2016 @ 11:05am

    ...the Verve getting sued by The Rolling Stones for the hit "Bittersweet Symphony" sounding similar to the Stones' "The Last Time."

    I don't really hear the similarity on this one.

    I've always thought that The Verve's "Bittersweet Symphony" was a slowed down version of Honeymoon Suite's "New Girl Now" myself.

    reply to this | link to this | view in chronology ]

    • identicon
      TonyLurker, 11 Aug 2016 @ 11:55am

      Re:

      In the case of the Verve's "Bittersweet Symphony" they quite literally used a sample from an orchestral performance of a Rolling Stones song. It wasn't a case of sounding similar, it was a case of exceeding the license they had agreed to for the sample. The Verve had already obtained a license to use a shorter sample, and then decided to use a longer one without first re-negotiating.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2016 @ 12:05pm

      Re:

      I'm pretty sure TD has covered the "Bittersweet Symphony" case before, so I'm surprised the writer is lumping that one in with these other "sounds a bit like" cases.

      The Verve used a sample of the Oldham Orchestra's symphonic rendition of "The Last Time" by the Rolling Stones. It didn't "sound similar," it was the song "The Last Time," just not the version the Stones recorded. As such, the case is a little convoluted because the Verve would have needed both the permission from the orchestra to use the recording, and permission from the Stones to use the underlying composition. (They would eventually be sued by both entities over royalty disputes.)

      reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 11 Aug 2016 @ 11:22am

    "whether or not it had infringed on someone's copyright in "Stairway to Heaven"

    Is our most excellent system really wasting time debating who owns materials released in 1971?

    No matter how that is resolved, the actual natural (non-legal) truth is: that material has been stolen from the public domain. It should have been our property decades ago.

    reply to this | link to this | view in chronology ]

  • identicon
    Will-INI, 11 Aug 2016 @ 11:33am

    "The Day the Music Business Died."

    I want to record an hour long song that covers every possible chord change then sue everyone. The song would be titled, "The Day the Music Business Died."

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 11 Aug 2016 @ 11:48am

    "We made it to the top, someone kicked the ladder away will you?"

    One of the core ideas behind culture and creativity is that older ideas and content is taken and changed into something new. Maybe something is added, maybe something is taken away, maybe an idea is twisted or reversed, with the result that you have something similar yet slightly or very different from the previous(note I did not say original). Then someone does the same thing to the 'new' piece and the cycle continues.

    Short-sighted buffoons like this however seem determined to stop that process entirely, too focused on the potential profits to give a damn what it will mean to everyone else, including themselves if they try to make something and someone decides that they look like an easy source of money.

    So what if the next generation is crippled in what they can make and how they can do it, too worried that something they make will be 'too similar' and therefore open them up to a lawsuit to actually make anything, the ones who already got their share of the pie by building upon the generation before them already got to the top, they don't need the ladder any more so screw the ones trying to climb up after them.

    reply to this | link to this | view in chronology ]

    • icon
      techflaws (profile), 11 Aug 2016 @ 10:24pm

      Re: "We made it to the top, someone kicked the ladder away will you?"

      Short-sighted buffoons like this however seem determined to stop that process entirely, too focused on the potential profits to give a damn what it will mean to everyone else, including themselves if they try to make something and someone decides that they look like an easy source of money.

      You mean like Satriani crying his heart out about Coldplay while 'stealing' from Cat Stevens?

      reply to this | link to this | view in chronology ]

  • icon
    Whatever (profile), 11 Aug 2016 @ 11:57am

    layers of things

    One of the problems with any lawsuit like this is that you have to peel away the various layers of a song to get to what is really at question.

    The Stairway to Heaven suit was a perfect example. There is a lot on the plate. Knowing that the cord / picking sequence is but a small part of the "original" song, and that the sequence in STH is just one of a number of variations on a similar cording structure makes it harder to show a true "rip off".

    Sheehan, well... he has a bigger problem in both cases because the music in question isn't a single riff or a few seconds of a 10 minute song, but rather the whole song. It's not just a question of "feel" but also a question of structure, phrasing, or performance, and such. STH was a question of a single line, Sheehan is a question of a much more substantial replication.

    Inspired by should never mean a duplicate of. If you want to cover the song, respect the original artist (something Zeppelin was very bad at too... back in the nasty days before proper copyright laws!).

    It would be harder for a court to rule in Sheehan's favor on this one than the Zep case, and no, it's not about money (we wish it was that simple).

    reply to this | link to this | view in chronology ]

  • identicon
    Veracitor, 11 Aug 2016 @ 12:14pm

    Hemingway Estate Slam-Dunk Suit Against Bad Hemingway Contestants?

    I'm waiting for the Hemingway Estate to sue every Bad Hemingway Contest (officially the "Imitation Hemingway Competition") entrant for writing stuff that "seems like" Hemingway. Of course they'll throw in a disparagement claim too, since all the infringing works are "bad."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Aug 2016 @ 3:51pm

    Two words: Andy Warhol

    I can't think of an image by Andy that isn't at its heart similar to an image by someone else. He gets to argue that his use is transformative. Why doesn't that work for music too?

    reply to this | link to this | view in chronology ]

  • identicon
    Howard the Duck, 12 Aug 2016 @ 6:40am

    Thanks to this article I made two buys

    Marvin and Ed both made money today, thanks to your article. A positive Streisand effect? Conspiracy!

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 12 Aug 2016 @ 7:24am

    Things like that are what made me change my stance from supporting some copyright to advocating for the total abolishment of it. There's no way any copyright system will be fair as long as you have big corporations and not the collective composed by the artists and the public dictating how the laws will be made.

    reply to this | link to this | view in chronology ]

  • icon
    Vinquus (profile), 12 Aug 2016 @ 8:17am

    First they came for Ed Sheeran...

    And I said nothing, because I was not a douchebag...

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 12 Aug 2016 @ 10:45am

    AWESOME!!!

    This is a FUCKING AWESOME DEBATE!!!

    :D

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 16 Aug 2016 @ 11:01am

    Just stop making music

    At what point will musicians stop making music because there's too much of a risk of getting sued by someone who made a similar song 40 years ago, which they've never even heard of?

    I'm not sure whether to mark this post as sarcasm or not.

    reply to this | link to this | view in chronology ]


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