Editor’s note: On May 4, after three hours of deliberation, a jury found that Ed Sheeran did not copy Marvin Gaye’s “Let’s Get it On.”

In 1973, singer-songwriter Marvin Gaye reached number one on the Billboard Pop Singles chart with his new R&B hit for Motown Records, called “Let’s Get It On.” Cowritten with producer Ed Townsend, the sensual single sold more than two million copies in the weeks after its release, and it helped solidify Gaye as the “Prince of Soul” and an American music icon.

More than 40 years later, English musician Ed Sheeran penned “Thinking Out Loud,” a wildly popular romantic ballad that topped the charts in Europe and America, and that has been purchased or streamed more than 4,200,000 times to date.

Recently, the heirs of Townsend, Gaye’s cowriter, sued Sheeran, alleging that aspects of his song copied parts of “Let’s Get It On” — violating the heirs’ copyright — to the tune of $100 million in damages. For his part, Sheeran has said that he did not borrow from Gaye’s song, and that any similarities result from the ubiquity of certain chords and chord progressions in pop music.

As the jury trial for the case continues, Harvard Law Today spoke with intellectual property expert Louis Tompros, a lecturer on law at Harvard and partner at WilmerHale. Tompros explained what the suit is about, what the jury will be asked to decide — and what could happen if Sheeran loses.

Harvard Law Today: What is the legal standard for whether Ed Sheeran violated the copyright for “Let’s Get It On”?

Louis Tompros: The fundamental question for any copyright infringement is, ‘was this a copy or not?’ Here, the question is, was “Thinking Out Loud” a copy of “Let’s Get It On”? The standard for that takes into account two things — similarity and access. So specifically, the jury’s question is, were the accessible and protectable elements of the Gaye song similar or not similar?

Now, there’s a weird issue in this Ed Sheeran/Marvin Gaye dispute that has come up before in music cases, and it has to do with the way that the Copyright Act changed in the 1970s. It turns out that for most songs written before 1978, the only thing that you could deposit with the Copyright Office, and therefore the only thing that you could protect, was the sheet music for a song. And of course, the sheet music may or may not encompass all of the aspects of the performance of the song. So here, as a purely technical matter, what Townsend’s estate has rights to is the music embodied in the deposit copy of the sheet music — in this case, it’s just chords and lyrics, there is no bassline. So, the bassline can’t be part of the consideration.

So, in the end, the question is: Are the protected aspects of “Let’s Get It On,” as embodied in this deposit copy of the sheet music, similar to “Thinking Out Loud”?

HLT: How will the jury evaluate that?

Tompros: The parties have submitted competing sets of jury instructions to the judge, and the judge will ultimately give instructions, and will try to explain this complicated question of what’s protectable, and what has to be similar. 

But fundamentally, what the jury will be asked to do is figure out whether the protectable material is substantially similar or not. In a pre-trial order, the judge specifically held in this case that the bass is out, and the jury is only going to be considering the chord progression and harmonic rhythm — but also that they cannot consider chord progressions and harmonic rhythms that are part of “common musical techniques.” So, it’s going to be this very limited idea of whether there is anything novel or new about Gaye’s chord progression, which would mean it was protected. And then the question is whether it was similar to the one in “Let’s Get It On.”

I will say that that is a hard bar to clear in front of a jury — to try to show them these things are protectable and copied when it’s that limited. But it seems that the plaintiffs here have done a really excellent piece of trial advocacy. They started the case with a video of Ed Sheeran doing his own mashup of his song “Thinking Out Loud” with Marvin Gaye’s “Let’s Get It On,” and they have been arguing to the jury that that was effectively an admission of copyright infringement, if you can mash the songs up so seamlessly. However, that will be ultimately for the jury to decide and again, common musical techniques are out.

HLT: Presumably most members of the jury are not musicians, or at least not professional musicians. Does that make the case more complicated to litigate?

Tompros: Yes. It’s hard for juries to look at and compare sheet music if they don’t know how to read music. This is a common issue that comes up in copyright, trademark, and patent cases, where you are trying to explain to the jury a fairly specialized field. You’re trying to teach them what counts as art in a specific area, or how chord progression works, or how a transistor works.

But I think one of the great things about our system is that we count on juries to do those things, and we trust lawyers to do the kinds of trial advocacy necessary to teach them. Of course, we also bring in experts, such as musicologists, who can help explain things to the jury. The idea is to educate the jury and then let them come to their decision.

HLT: Are there any comparable cases we can look to in order to understand maybe how this one could turn out?

Tompros: The two most obvious prior cases that might give us some guidance are an earlier Marvin Gaye case, and the very important, recent Led Zeppelin “Stairway to Heaven” case.

In 2015, a jury decided that the Robin Thicke and Pharrell Williams song “Blurred Lines” infringed a different Marvin Gaye song, “Got to Give it Up,” and awarded more than $5 million in damages. The case was not that different — the chord progression was also at issue there, and the song sounded very similar. That was a big verdict, and I think a significant surprise to the industry at the time.

And then I think the other case to look to for guidance is a 2020 case coming out of the Ninth Circuit Court of Appeals, Skidmore v. Led Zeppelin. There are a number of things it said relevant to this case, but the one that’s most important is that it said, essentially, that there are certain musical building blocks that belong in the public domain. It ultimately concluded that with respect to the allegations in that case, the only things that were accused of being the same about the melody in “Stairway to Heaven” were taken from basic musical building blocks, not something that was protectable.

There’s another interesting  parallel in that case, because it also dealt with that same deposit copy sheet music issue. In the Led Zeppelin case, the jury was not allowed to hear the audio recording of the copyrighted song; they were only allowed to look at the sheet music and then try to compare it to the audio recording of “Stairway to Heaven.” It was really interesting to put that question to the test — can a jury figure this out? Ultimately, the conclusion from the Ninth Circuit in that case was that it was appropriate to only provide the jury with the sheet music, to not have them play the earlier song because the deposit copy was all that mattered, and that the things that were in that sheet music, ultimately, were the kinds of musical building blocks that aren’t protected.

The Led Zeppelin case is very similar to the defense’s argument in the current Ed Sheeran case. On the other hand, the plaintiffs are hoping for a result like Marvin Gaye’s estate got in the “Blurred Lines” case. Interestingly, these cases come out the opposite way, so they may not give us a lot of guidance about what might happen here, but they help us understand the case.

HLT: What might the impact be if Townsend’s estate wins against Sheeran? Would he have to stop using the song?

Tompros: No, he wouldn’t necessarily have to stop using it; he would likely just have to pay monetary damages. In this kind of scenario, an injunction would be a real surprise. There would have to be a showing that somehow the Gaye song’s estate is being harmed by Sheeran’s song being out in the market in a way that can’t be compensated by money. That seems really unlikely. However, I wouldn’t be surprised if the jury came back with a very high damages award. They might ultimately determine that this is entitled to a significant royalty, or a significant portion of the profits from this very successful Ed Sheeran song.

If that happens, it will have an industry-wide impact. I think anytime there’s a copyright infringement case, it affects the way that the industry thinks about how safe it is to come up with new music that’s inspired by old music. When the “Blurred Lines”/Marvin Gaye verdict came out, it was a huge surprise and caused a lot of folks to think carefully in vetting new releases to avoid lawsuits. And indeed, there were a spate of copyright lawsuits that were filed soon after that. But when the Ninth Circuit decided the Led Zeppelin case, I think there was a bit of a sense of the pendulum swinging back the other way. As in, ‘ok, maybe we need to be a little less worried about creating something that’s newer and derivative.’ Whatever happens, it will affect the way that musicians, and more fundamentally the way the companies that back and promote them, think about the risk of new music, particularly where it is inspired by older music.

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