I've only really looked into the case involving “Thinking Out Loud” and Marvin Gaye's song, “Let's Get It On". I'm not music buff, but when you listen to them, they are completely different. There is no similarity at all.
Sheeran's claim to the court he was going to quit music stuck me as beside the point - I hope the jury didn't hear that, lest it influence their verdict. The question for them was if there was infringement. There obviously wasn't.
This meritless lawsuit was always going to fail. But Sheeran was fortunate to have deep pockets. He can afford to defend meritless lawsuits. The bigger issue is how to deal with large companies suing independent artists, and the consequences they should suffer for instituting meritless lawsuits.
The two songs are very similar in some ways -- similar enough that even Sheeran played them as a live medley. I think the strongest argument is that the common elements are mostly shared genre markers, and courts have consistently held that genre similarities aren't evidence of copying.
They have a similar (but not actually the same) chord progression. They're in a different key and the melody is different. If you could copyright similar chord progressions then that would be the end of new pop music.
> similar enough that even Sheeran played them as a live medley
That doesn't really mean much, any good sounding diatonic (chords all from the same key) song is going to share the progression with lots of other songs https://www.youtube.com/watch?v=5pidokakU4I
> If you could copyright similar chord progressions then that would be the end of new pop music.
And many other types of music.
But whether you "can" or "can't" copyright something doesn't really come in to play: I can sue anyone for anything, and as long as it's vaguely plausible so it won't get thrown out and my pockets are deep enough I can be a serious nuisance. Whether the claim is ridiculous or not is actually not all that important.
New pop music could still be made by record labels with a massive portfolio of existing music.
Basically the same way software patents work: you don’t have to worry about suing yourself, and MAD ensures you won’t get sued by any of the other big players. The next logical step is the rise of the nothing-to-lose patent/copyright troll. Get rights to some obscure piece, then start extracting payments
They're similar in terms of tempo, chord progression, chord rhythm, and chord voicing - despite that the second chord is actually subtly different between the two. When you transpose one, you can hear the similarities.
But that shouldn't even be close to enough to be infringement. I'm one to think they got Satriani/Coldplay wrong as well, though. There are just too many examples of songs that make really good mash-ups. 4 Non Blondes What's Going On and Bobby McFerrin's Don't Worry Be Happy, for instance. I'd say those are more similar that Sheeran/Gaye.
> There are just too many examples of songs that make really good mash-ups.
A few years ago Pomplamoose was really into mashups, and sometimes I had to remind myself these were two different songs. I just checked their channel, and their two most popular pieces are mashups (Sweet Dreams + Seven Nation Army, and Stayin’ Alive + Virtual Insanity)
What I love about the Satriani/Coldplay lawsuit was there was a third band, Creaky Boards, who first accused Coldplay of stealing their song a year before Satriani. You can still see posts on r/music as of less than a year ago talking about this.
However, wouldn't this mean Creaky Boards actually stole the song from Satriani?
Right. I don't think copyright should apply to similar songs, even intentionally similar songs. Musical traditions worldwide rely on imitation, elaboration, recontextualization of known works.
I really believe that Jamaica saw such a musical explosion (and continued cultural dominance) because of the "human" view of music creation. So much was about borrowing or reusing or repurposing. Lyrics subtly changed from other songs. Reusing melodies from other songs. Purposely having multiple artists do their take on "riddims" to make the song their own. It let anyone contribute and it increased the amount of creative production, not reduced it. And, what do we get out of subtle modifications and copying of previous tunes? A genre.
Meh, this is a parlor trick. The two songs have similar rhythms and chord progressions, that is all. There is probably not a single popular song ever written that didn't share those features with some other song out there somewhere. And two songs don't even have to be similar at all to be able to fram them together in a way that sounds coherent.
There are many songs that can cohere with "Let's Get It On", especially if you allow yourself to change tempos and keys, which you have to do in order to make "Thinking Out Loud" fit. In fact, if you allow all the diffs you have to employ to map LGIO onto TOL there are probably hundreds of songs you could fit either one to.
In fact, there is almost certainly a song (probably more than one) released before LGIO that you could map LGIO onto which LGIO would infringe by this standard.
I'm not exactly sure what we're arguing about, since Beato doesn't leave much doubt that it's not a ripoff. The keys are different, but the tempi are pretty darn close. Your "probably" is doing a lot of work here.
LGIO doesn't fit a pattern of "unknown artist writes something, sues the big artist only when he/she has a hit." LGIO was a big hit on its own.
Led Zeppelin settled this one, for an undisclosed sum.
Plagiarism is clearly a judgment call. I don't know if Townsend was willing to settle for a reasonable sum or not. Probably not, since they went to trial, which was just asking to end up with nothing.
Are we arguing? I think we're mostly in agreement about the main issue.
The only thing I think we might disagree on is that you attach more significance to the fact that LGIO and TOL sound coherent when you alternate between them than I do.
I'm not an expert on copyright law, but I think "derivative work" probably does describe TOL. However:
I believe the defendant is entitled to ask for a jury trial. Once that was granted, though, the plaintiffs should have settled. There's no way a jury is going to understand what a derivative work is, and a jury trial is horrendously expensive.
> More that Sheeran himself alternated between them in his concerts
I don't understand why you think that's relevant. No one disputes that the songs share a chord progression (modulo a key change), and so they make a good mashup. There is a lot of daylight between that and copyright infringement (or at least there ought to be IMHO).
> I think "derivative work" probably does describe TOL.
We'll have to agree to disagree about that too. IMHO four chords is not enough, not even remotely close. If it were, you could easily enumerate all possible distinct songs.
Heck, there are far fewer chords than there are English words, so there are far fewer four-chord progressions than there are four-word phrases. Do you think it should be possible to copyright four words?
I'm not positive it's a derivative work, and more importantly, I'm not positive that's even a concept in music copyright. And most importantly, I don't think any jury is going to convict on that.
That said:
Your example is a straw man. "No one disputes that the songs share a chord progression" -- no, that's not the argument. Look at that video: they share identical four opening bars.
The question is, did he start with LGIO and make mods to it? If so, it's a derivative work.
Consider "fan fiction." You take the same Star Trek NG characters and change some of the plot. It's still recognizably Star Trek NG. Yet people do get away with fan fiction these days, AFAIK.
So a judge trial would have ended differently; the judge would have ordered a small but significant payment. But going for a jury trial was a loser right from the start.
They are not even close to identical. They share openings that can be made to sound identical if you just play the sheet music with a few tweaks (like changing key) but if you listen to the actual recordings no one would have any trouble telling them apart. In fact, I'll bet if you played the opening bars of the actual recordings to someone who was not trained in music it would not even occur to them that they were similar in any way.
We could do an experiment: I'll bet I could find five songs that are similar enough to LGIO that if you played the original recordings of those songs along with TOL and LGIO to test subjects who had not heard any of those songs before, that they could not pick out TOL and LGIO as the allegedly infringing pair with odds better than chance.
> The question is, did he start with LGIO and make mods to it? If so, it's a derivative work.
Yes, but that's irrelevant. An infringing work is an infringing work no matter how it was produced. Of course, the most likely way that an infringing work gets produced is by copying, but this is exactly the problem: the more you allow people to claim copyright over things with little information content (like a chord progression containing only three chords), and the broader a net you allow it to cast, the more likely it becomes that someone produces an infringing work by pure chance.
> people do get away with fan fiction these days
Only if they don't make money off of it.
> a judge trial would have ended differently
There is no way to know. But if you're right, then thank God for juries because sometimes that is our last bastion of defense against corporate overreach.
No idea. I didn't follow the trial. But one of the things I was originally responding to was "even Sheeran played them as a live medley" which is only relevant in the context of a performance, not a composition.
There shouldn't even be a copyright issue for a work released in 1971 - over 50 years ago. Surely the work should be in the public domain in any reasonable system.
Somewhat oddly this song fits into a weird slot in history:
“
A quirk of the law restricts which aspects of “Let’s Get It On” (1973) are under copyright. For many songs made before 1978, only the contents of the sheet music submitted to the Copyright Office (known as the “deposit copy”) are protected. With “Let’s Get It On,” that notation was skeletal: just chords, lyrics and a vocal melody. Other key aspects of the track, like its bass line and signature opening guitar riff, were absent.
That means the lawsuit primarily came down to the chord progressions of the two songs, which are nearly — but not entirely — identical.”
I think the law in the USA is that copyright is maintained until 70 years after the death of the writer/composer (unless it was a work-for-hire). So just another 31 years to go here (2054) assuming Marvin Gaye was the sole author.
Adam Neely does a better job, and includes multiple examples of other songs that Gaye could have "ripped off" by some definition. https://www.youtube.com/watch?v=tpzLD-SAwW8
This is a bit frustrating because Neely did a better job covering the "Blurred Lines" case but Beato has more viewers, I guess.
I think this is actually the point. Sheeran was sued not because he made a song that sounded the same as another song, but because the song he made earned a lot of money.
So this problem only happens to rich musicians who have earned a lot of money making music. That doesn't make it right, or reasonable, obviously. But it also means that the vast majority of musicians will never have this problem. The whole "copyright is threatening music" headline is a little overblown. "Rich douchebags are using copyright to bully rich musicians with meritless court cases" would probably be more accurate.
I think your comment exposes more of the underlying point. Why are the courts letting these baseless claims through? If you become famous everyone suddenly comes out of the woodwork to make the argument that they want a piece of your pie. And as you get more popular, those claims just get more and more detailed and cover more absurd. That would be demoralizing to any artist, regardless of their popularity or success.
He was obviously making a very well considered and important contribution to the discussion and not at all dropping a variety of turds, both real and proverbial, whilst sitting on the can.
1M or so streams per month is still indie realm isn't it? And anyway, if it's less, that just makes the point harder: 'nobody is suing indie artists for the 70k they didn't make last year'.
Sheeran's claim to the court he was going to quit music stuck me as beside the point - I hope the jury didn't hear that, lest it influence their verdict. The question for them was if there was infringement. There obviously wasn't.
This meritless lawsuit was always going to fail. But Sheeran was fortunate to have deep pockets. He can afford to defend meritless lawsuits. The bigger issue is how to deal with large companies suing independent artists, and the consequences they should suffer for instituting meritless lawsuits.