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.
