Ed Sheeran and the blurred lines around copyright infringement claims

Now that Ed Sheeran has been cleared of copyright infringement by a New York City jury, you may be left wondering as to what differentiates this case from the “Blurred Lines” decision – perhaps the next most famous copyright infringement judgement of recent years. Below we’ll take a deeper look into what tipped the scales in favour of Sheeran, and why fellow popstars Robin Thicke and Pharrell Williams were left with a hefty amount to pay.

The history of popular music is littered with copyright disputes. Over the years these cases have had a tendency to vary between the well-founded and the baseless, but one thing they certainly have all had in common is the immense cost that has come with both pursuing and defending them.

Lately, these unpleasant episodes have seemed to arise with increasing frequency. Justin Bieber, Dua Lipa, Coldplay, Katy Perry, The Verve and Lana Del Rey are just a few of the high-profile names who have had their works subject to claims of copyright infringement and subsequently forensically dissected and analysed. It is, however, the claims levelled against the works of Ed Sheeran that have featured most prominently in the media during the last 18 months or so.

The (two) trials and tribulations of Ed Sheeran

In the first case, Sheeran found himself having to fend off allegations of infringement in the English High Court in early 2022, in relation to his chart-topping 2017 hit “Shape of You”. In doing so he performed excerpts of a variety of well-known songs in order to demonstrate both the ease with which certain melodies can be made to sound the same and just how common these melodies are throughout the world of pop music.

Having had to contend with an estimated £20 million in royalties being “ring-fenced” pending the court’s decision, Sheeran and his co-writers eventually emerged victorious after the court found that there was neither deliberate nor subconscious copying involved in the creation of the song. In the wake of the court’s decision, Sheeran decried the fact that unsubstantiated claims have become “way too common now” and that there is now “a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no basis for the claim. It’s really damaging to the songwriting industry.”

Sheeran didn’t have to wait long for his next day in court. In May 2022, the British singer-songwriter made headlines again when he appeared in front of Judge Louis L. Stanton in Manhattan to defend himself in a copyright action initially raised in 2018 by the co-writer of Marvin Gaye’s “Let’s Get it on”, Ed Townsend, alleging that Sheeran had copied elements of the song for his 2014 hit “Thinking Out Loud”, and seeking damages of $100 million.

Again, Sheeran wanted to let the music speak for itself and therefore elected to play portions of “Thinking Out Loud” to the jury. Whilst he admitted that the two songs were indeed similar, he argued that any similarities between the chord progressions and rhythms of each song were unsurprising given that such progressions and rhythms constituted the foundations of music, and were elements which songwriters “now and forever must be free to use”. He also relied on the expertise of a musicologist who claimed that the four-chord sequence at issue had been used several times by other artists in the years preceding the release of “Let’s Get it On”. The plaintiffs, meanwhile, unsuccessfully argued that Sheeran had in fact copied a collection of elements that are unique to Gaye’s song, although they did concede that the underlying constituent elements are not protectable.

The jury decided in Sheeran’s favour, following which he expressed relief that he had once again been absolved of any plagiaristic wrongdoing, having claimed prior to the judgement that he would retire from songwriting if the decision were to go against him.

How not to defend against claims of copyright infringement

Sheeran’s latest copyright conflicts may call to mind another headline-grabbing case, also involving a famous song from Marvin Gaye’s catalogue. In 2018, a long-running dispute between Gaye’s family, Robin Thicke and Pharrell Williams finally concluded after a California court confirmed that Thicke and Williams had to pay a total of $4.98 million for copyright infringement for their use of elements of Gaye’s “Got to Give It Up” in “Blurred Lines” and provide the Gayes with 50% of all future royalties from the song.

The verdict prompted a wave of criticism from musicians and musicologists alike for its potential to hinder future creativity given the excessively broad intellectual property protection it appeared to confer to Gaye’s family over musical “feel” in the absence of any substantial similarity, particularly with reference to the two songs’ respective notes and rhythms. Indeed, even dissenting Circuit Judge Jacqueline Nguyen opined that the verdict struck a “devastating blow to future musicians and composers everywhere” given the clear differences in melody, harmony and rhythm”. She further claimed that in winning the case, the Gayes had managed to accomplish “what no one has before: copyright a music style”.

What is the difference between these two cases?

Both cases centred on the compositional elements of the songs rather than their lyrics or respective melodies. Both US cases made use of sheet music in the comparison of the works due to the limitations on the use of sound recordings imposed by the 1909 Copyright Act which governs works created prior to 1978 like Gaye’s songs “Let’s Get It On” and “Got to Give It Up”. So, why did Sheeran triumph while Thicke and Williams were required to pay an exorbitant sum in damages and an equally substantial portion of their royalties? To aid in answering this question, it is useful to consider a few of the decisions that have been made in the interval between the two cases.

In the period following the Blurred Lines judgement, there was a sharp increase in the occurrence of not only seemingly frivolous claims looking to benefit from the after-effects of the decision but also an increase in the precautionary practice of adding potentially problematic songwriters of past songs to writing credits.  But the tide has more recently begun to turn on such claims.

First came the Ninth Circuit’s verdict in favour of Led Zeppelin in 2020, regarding what is perhaps the band’s most celebrated work, “Stairway to Heaven”. In this decision, the court dismissed the claim as it was made on the basis of “common musical elements”, themselves incapable of copyright protection. Shortly after, Katy Perry’s “Dark Horse” was similarly found not to have infringed the copyright in eight notes of a hitherto relatively unknown song by a band named Flame. These judgements have collectively had the welcome result (at least for songwriters) of curbing some of the damage done by the California court’s earlier judgement in favour of the Gaye family.

However, the momentum of these contrary decisions can only go so far in explaining Sheeran’s victory. The real reason for the difference in outcomes between the Sheeran and Thicke cases can perhaps anti-climactically be more simply attributed to the specific facts of each case. Thicke mentioned in a media interview that he had been inspired by the Gaye track, thus assisting the Estate in establishing the key requirement of access to the infringed work. Thicke then claimed in his deposition that he had lied in the media about being inspired by Gaye’s song and also admitted to being under the influence of various substances at the time of the song’s creation. In the end, it appears that the admissions and inconsistencies in his case went against him when it came time for the jury to weigh up both sides of the story and come to a decision.

In spite of the very public outcry from musicians in the aftermath of the Blurred Lines judgement, it appears that the long-term future of songwriting in light of the Sheeran judgements is much safer than had previously been feared – at least from the threat of unfounded copyright claims.

Nevertheless, there are some precautionary measures which songwriters can and should take in order to minimise the risk of potentially very lengthy and costly copyright disputes further down the line. The most important of these is undoubtedly the relatively cost-effective measure of registering works with the US Copyright Office at the Library of Congress, which crucially has a substantial impact on costs recovery and allows creators to receive statutory damages if successful in a claim. Secondly, keeping good (dated) records of what was created and when can help a great deal – whether this be through recordings of ideas or just recording ideas down on paper.