The court is in session for chord progression

Hello readers! This week I’m asking the question which has been plaguing humanity since the advent of the 12-tone equal temperament scale: can you copyright a chord progression? A rather interesting court case has started in Manhattan, where the heirs of the co-writer of Marvin Gaye’s song Let’s Get It On are accusing Ed Sheeran of copying. The problem is, nobody can agree what “copying” means when it comes to music. All we know is that Let’s Get It On and Thinking Out Loud sound kind of similar.

The accusation

The plaintiffs in this case are the heirs of Ed Townsend, who co-wrote Let’s Get It On with Marvin Gaye. They say that the song Thinking Out Loud shares enough similarities with Let’s Get It On that Ed Sheeran should have credited Ed Townsend, and that the Townsend heirs therefore deserve a cut of his profits. It isn’t the first time that someone has accused Ed Sheeran of copying; only last year, he was cleared of having copied part of Shape of You from the relatively unknown song Oh Why by Sam Chokri and Ross O’Donoghue. The judge ruled that there were “similarities” but also “significant differences”.

With all creative work, there are grey areas when it comes to copying. Every painter, sculptor, writer, poet or musician will have been inspired by other artists, and we must expect some sharing of ideas, because otherwise everyone would be starting from scratch and we would still be scraping charcoal on cave walls and banging rocks together. Artists will often talk about their inspirations, and just like in the world of science, there are paradigm shifts as new genres form and others are left behind. For example, practically every high fantasy book written after The Lord of the Rings will have lifted some elements from Tolkien. It’s almost unavoidable. Similarly, every painter who incorporates perspective into their pictures probably owes something to 15^th century Italians.

The outcome of the Sheeran vs. Townsend case could set a new precedent for what constitutes copying in music. If Thinking Out Loud is deemed too similar to Let’s Get It On, this could open the doors to many more copying allegations.

Let’s break it down

Thinking Out Loud is a typical Ed Sheeran song, with four chords on loop throughout the verse and the chorus. These chords are D, F#, G and A. Let’s Get It On is a more complex song, but the opening verse and chorus use the four chords C, Em7, F and G7. For starters, then, these songs are in a different key. However, putting a song in a different key doesn’t make it a different song. No matter what key you choose for singing Happy Birthday, everyone can still recognise it as Happy Birthday. Indeed, we still recognise it even when every singer involved chooses a different key, and then changes key at random partway through.

The chord progressions of Thinking Out Loud and Let’s Get It On are equivalent. Play the chords, and you can sing the melody of either one. This is aided by them both having a very similar tempo and, to use the scientific term, “groove”. Indeed, there is footage of Ed Sheeran merging the songs together in front of an audience of 20,000 people. What we can draw from this is that the songs share similarities, and that Ed is perfectly aware of this.

However, just because two songs can be merged together doesn’t make them the same song. There are thousands of pop songs out there that use the same chord progression, the most famous of which is a variant of C, G, Am and F. Examples of songs which use this include: Torn (Natalie Imbruglia), Where Is The Love (Black Eyed Peas), Price Tag (Jessie J), Don’t Stop Believing (Journey), Wherever You Will Go (The Calling), Take Me Home, Country Roads (John Denver)… The list is very, very long. And, obviously, these are all different songs, despite using the same chord progression.

Likewise, if you take the chord progression of Thinking Out Loud, you can put all manner of other melodies over the top, even from songs which had different chord progressions originally. Ones that I have managed to think up this morning include: Express Yourself (Charles Wright), Oh What A Night (Frankie Valli and the Four Seasons), Budapest (George Ezra) and the 10 am theme from Animal Crossing: New Leaf. But I’m not an expert.

So, what did the expert say?

A professor of music from the University of Vermont claimed that the “musical value” of the songs was 70%. I have yet to find a news outlet that explains what this means. The same music expert played a computerised version of Let’s Get It On, which was apparently so awful that it prompted laughter in the courtroom.

Of course, the other music expert in the room was Ed Sheeran himself. He claimed to have written ten new songs last weekend – and if we extrapolate that, he must be writing hundreds of songs per year. Given that many of his songs rely on a single, repeating chord progression (in part due to his mastery of loop pedals), it is highly likely that there will be overlaps with songs that have come before. With only 12 notes in an octave, and a general consensus over what sounds good to human ears, it is no surprise that songs start sounding similar.

Can you copyright a chord progression?

This is, in essence, the question that will be answered by the end of this court case. Ed Sheeran argues that certain, well-known chord progressions are the building blocks of music, free for use by anyone – and the writers of the classic four-chord songs listed earlier would almost certainly agree with him. An analogy might be the “seven basic plots” that storytellers use to create narratives. We’ve all seen dozens of versions of “two lovers cannot be together because of circumstances beyond their control”, and yet not all of these are copies of Romeo and Juliet. Each take on the basic premise is different.

If the court decides that Let’s Get It On is the only song allowed to use that specific combination of chords and rhythm, I anticipate a flurry of artists suing other artists to stake their claims over particular patterns. However, unless there is some biological or psychological shift in the way we hear music, the limited pool of chords and melodies may eventually run dry. What happens if all the pleasant-sounding chord progressions become intellectual property?

In summary…

I’m very interested in the outcome of this court case. All composers have probably reinvented the wheel at some point, intentionally or not. Indeed, almost every month I get excited over a new song I’ve accidentally bashed out of my guitar, only to realise that I’ve rewritten House of the Rising Sun for the fifth time. It’s difficult to be innovative after tens of thousands of years of human creativity – and often, people like hearing a new take on something familiar. Whether or not that constitutes copying is up for the jury to decide.