Ed Sheeran’s “Thinking Out Loud” did not infringe the copyright to Marvin Gaye‘s “Let’s Get It On,” a federal appeals court ruled Friday (Nov. 1), saying the two songs share only “fundamental musical building blocks” that cannot be owned by any single songwriter.
In a ruling issued more than a decade after Sheeran’s chart-topping hit was first released, the U.S. Court of Appeals for the Second Circuit rejected an infringement lawsuit filed by Structured Asset Sales, a company that owns a small stake in the rights to Gaye’s song.
The case argued that Sheeran’s song copied a chord progression and rhythm from Gaye’s, but the appeals court said the lawsuit was essentially seeking “a monopoly over a combination of two fundamental musical building blocks.”
“The four-chord progression at issue—ubiquitous in pop music—even coupled with a syncopated harmonic rhythm, is too well-explored to meet the originality threshold that copyright law demands,” a panel of appeals court judges wrote. “Overprotecting such basic elements would threaten to stifle creativity and undermine the purpose of copyright law.”
Looking at the two songs more broadly, the Second Circuit also ruled that Sheeran’s track was clearly not similar enough to Gaye’s to amount to copyright infringement: “Neither the melody nor the lyrics of ‘Thinking Out’ Loud bears any resemblance to those in ‘Let’s Get It On.’ Undeniable and obvious differences exist between them.”
Sheeran has faced multiple lawsuits over “Thinking,” a 2014 track co-written with Amy Wadge that reached No. 1 on the Billboard Hot 100 and ultimately spent 46 weeks on the chart. He was first sued by the daughter of Ed Townsend, who co-wrote the famed 1973 tune with Gaye. That case ended in a high-profile trial last year, resulting in a jury verdict that cleared Sheeran of any wrongdoing.
The case decided on Friday is a separate lawsuit filed by SAS, an entity owned by industry executive David Pullman that controls a different one-third stake in Townsend’s copyrights — meaning a one-ninth stake in the rights to Gaye’s iconic track. In May, weeks after the big jury verdict, a federal judge tossed out the SAS lawsuit, ruling that it was seeking an “impermissible monopoly over a basic musical building block.”
In upholding that decision on Friday, the Second Circuit echoed the earlier ruling’s concern about overprotecting copyrights and threatening future songwriting.
The chord progression and harmonic rhythm at issue in the case are “garden variety” elements that had been used in numerous songs, the appeals court said, pointing to evidence that they had appeared in “Georgy Girl” by The Seekers and “Since I Lost My Baby” by The Temptations — two tracks that predated Gaye’s song by years. The appeals court noted that there is a “limited number of notes and chords available” and that “common themes frequently reappear.”
“In the field of popular songs, many, if not most, compositions bear some similarity to prior songs,” the court wrote, quoting from a treatise on copyright law. “So while a similar chord progression and harmonic rhythm may create a similar sound and feel, that is not enough.”
The ruling is a major victory for Sheeran, but the battle over “Thinking” isn’t quite over yet. SAS also has another lawsuit against Sheeran pending, advancing an unorthodox effort to cite a more expansive copyright covering the sound recording to “Let’s Get It On” rather than the written music. That case has been paused while the earlier lawsuit played out.
In a statement to Billboard following Friday’s decision, SAS owner Pullman criticized the appeals court for citing “two songs out of over 60 million registered songs” in its analysis. And he stressed that the decision had not addressed his company’s arguments relying on a recent U.S. Supreme Court decision about federal regulatory power.
Sheeran’s attorney, Donald Zakarin of the law firm Pryor Cashman, told Billboard that he and his clients were “gratified” by the court’s ruling: “This ruling is consistent with the jury’s rejection of any claim of infringement in the [earlier] case, finding that Ed and Amy independently created ‘Thinking Out Loud.’”
