What “Thinking Out Loud” and “Let's Get It On” reveal about the current state of the music industry

Jun 20, 2023 Ed Sheeran copyright music industry

What “Thinking Out Loud” and “Let's Get It On” reveal about the current state of the music industry

What does it mean to copy? What is creativity? These are questions raised by the Ed Sheeran Copyright lawsuit that just ended in victory for the singer. The case was a display of all of the excesses of the music industry–but more importantly, it reveals key issues the medium itself will face for years to come.

The basic idea of copyright in the US is straight forward. If you're writing a song, the chords need not be original, but the melody and lyrics must be.

Most composers run into a basic issue: if there are only so many notes, and only so many combinations of chords that work together, how do composers keep creating new music? Surely there are only so many possible songs, especially in the minimalist style of today's pop music.

Composers run into a second, related issue: In our daily lives, copying is usually considered to be theft or cheating. In all areas of art, however, copying happens all the time. So, when is it wrong?

The Sheeran case has some similarities to a 2016 lawsuit against Jimmy Page and Robert Plant, which alleged that the theme to “Stairway to Heaven” was plagiarized from a song called “Taurus,” which was recorded by another band a few years prior. The two songs feature guitar parts with eerily similar textures, playing over an eerily similar chord progression. But they're not the same, based on the melody.

What's interesting about the originality of Stairway to Heaven is that the section in question has even more in common with another piece of music. Giovanni Battista Granata's Granata's Sonata di Chitarra, e Violino, con il suo Basso Continuo, composed over 300 years ago, contains a section that sounds almost identical to the Stairway to Heaven motif.

Did Robert Plant and Jimmy Paige plagiarize a 300-year-old piece of music? Some on the internet believe so. But from a legal perspective, this couldn't matter because of the age of the work by Granata.

Regardless, it's much more likely the case is an innocent overlap of ideas. The sections feature a similar and interesting–but not earth shattering–chord progression. They arpeggiate over the chords, which means they play the basic notes of the chords in a sequence. They do this with instruments that have similar timbres. None of these things in and of it self would be an extraordinary coincidence, so to have all three happen in a span of 300 years is reasonable. Each piece of music on its own sounds honest and authentic. Each piece of music is expressive yet worlds apart in context. What does it matter if some sections sound similar?

These kinds of lawsuits are a drag on the music industry. They exploit the nature of music's natural constraints to find tenuous evidence of similarities between songs. They terrify composers who would never want to accidentally “copy” to the effect of having stolen from someone else. So, in an operational, legalistic, practical dimension, this verdict is positive for the industry.

Ed Sheeran's “Thinking Out Loud” and Marvin Gaye's “Let's Get it On” are, in a purely musical sense, strikingly similar. In each song the rhythm section part works the same way, creating a mood that forms a bedding for the singer to croon over–although the moods are not exactly the same. Each song does this, for much of the tune, with a very similar chord progression, much of the same notes (in their respective keys), at very similar tempos, with similar beats. The songs are close in terms of specific compositional elements as well as in their essences.

The rhythm part is the core element of both songs, and in both songs it's simple and minimalist. This is a problem for parties on either side of the plagiarism argument. Very similar chords are prominent in both songs, and it could be argued that the movement of these voices constitutes a melody. This is why the songs sound so similar. But where is the distinction between chords and melodies?

A song is more than just notes and chords. “Let's Get it On” and “Thinking Out Loud” are completely different in terms of what they express. The two songs are both love songs, in a sense–but they have that in common with millions of other songs that have been sung in human history. They express the different sides of this human trait, with “Let's Get it On” expressing the libidinal, and “Thinking Out Loud” expressing the romantic. Moreover, they feel completely different, unambiguously, through their different use of musical techniques that resist being measured and analyzed, such as phrasing in the vocals, and orchestration–not to mention the main lyric and melody, which are worlds apart.

This is why “Thinking Out Loud” sounds authentic, despite sharing so much with “Let's Get it On.”

It wouldn't be an original statement if I pointed out that today's pop music is more refined and pared down than ever. Composers and labels have found that listeners like to hear certain song structures more than others, and music is often written to fit within those forms. Top hit songs tend to track tempos in a way that seems to reflect a cultural mood.

It's a common belief that listeners like hearing the same music over an over again, more than they might realize. A sampling of the “Today's Top Hits” playlist on Spotify seems to confirm this. It's also likely that labels know this, and are so risk averse that they won't seriously promote anything that they can't be sure will work.

The irony of “Thinking Out Loud's” success is that the elements the song shares with “Let's Get It On” were likely what let it become a hit. The beat and chords are a great bed to sing over–but importantly, there's no question that listeners like them, based on the success of “Let's Get It On.” While music copyright lawsuits may slow down after this verdict, there will be accusations thrown around for years to come if pop music doesn't get more creative.