By Taylor Sweet
“Thank you… to my parents [who] have flown for the past four years to come to the Grammy’s . . ., and every single year and every time I lose they go ‘maybe next year.’” Ed Sheeran, who had just won a 2016 Grammy for Best Song for his song “Thinking Out Loud,” stood on stage, proud of his first ever Grammy. “If you would have told my five-year-old, eleven-year-old, any age, that I would be receiving this award from Stevie Wonder, well I would have been chopped,” he continued. Little did he know, just a year later, another musical great would take an interest in his song; however, instead of receiving an award, he would be receiving legal service.
Sheeran has been sued in the Southern District of New York for allegedly ripping off Marvin Gaye’s “Let’s Get it On” with his song “Thinking Out Loud.” However, it is not Gaye’s heirs that claim Sheeran copied the infamous 1973 love song; instead, it is the heirs of the producer who co-wrote the song, Edward Townsend, making these allegations. More specifically, Townsend’s heir, Kathryn Townsend Griffin, claims that Sheeran’s song infringes on Gaye’s song by using “nearly identical keys, tempos, meter, genres” and “chord progressions.”
Sheeran’s counselors responded with a motion for summary judgment, stating that there was no substantial similarity between the two pieces and that the elements at issue in the “Let’s Get it On” version that plaintiff co-wrote are “unprotectable” because they are part of the “public domain,” or elements that be can used by any artist. Judge Louis Stanton denied the motion and stated, “not only are there substantial similarities between several of the two works’ musical elements, but an ordinary observer might experience the aesthetic appeal of both works as the same.” With this motion denial, the case is headed to a jury trial. Whether or not the jury will hold in favor of Griffin may not only depend on whether they believe the elements of copyright infringement have been met, but also, according to Judge Stanton, whether they have the same “aesthetic appeal.”
To argue a successful copyright infringement case, counsel must prove that there was “actual,” intentional copying and that the two pieces of work are “substantially similar.” Many parts of a musical composition are not protectable under copyright law because they are considered “public domain.” Judge Stanton acknowledged that these “elements” included “key, meter, tempo, common song structures, common chord progressions, common melodies, and common percussive rhythms.”
Plaintiff’s theory is that the chord progression in Sheeran’s song is a direct copy from that of Gaye’s song. Even Sheeran himself played a live version of “Thinking Out Loud” in which he effortlessly switches into playing “Let’s Get it On” using the same chord progression. However, the parties’ musicologist experts disagree on whether the chord progression should be considered protected under copyright law or unprotected under public domain. Sheeran’s counselors pointed out that “at least thirteen songs that predate ‘Let’s Get it On’” have the same exact chord progression.
Sheeran’s counselors have made other valid arguments in advance of going to trial, pointing to the Ninth Circuit case in which a trustee of Randy Craig Wolfe, a member of the band Spirit, sued Led Zepplin for the group’s song “Stairway to Heaven.” In that case, the court stated that the trustee could only sue for infringement for the deposit copy, or sheet music version, of the plaintiff’s song “Taurus,” and not for finished and produced song, because it was the only version of the song on which Wolfe had worked. Because Townsend only helped to write a preliminary, deposit copy of “Let’s Get it On,” Sheeran’s lawyers similarly argue that it is the only protected version of the song in this case. More specifically, they argue that Griffin only has action for the version of the song on which Townsend actually worked.
However, despite the arguments of Sheeran’s counsel, Griffin may very well prevail in the case if the jury finds the deposit copy of “Let’s Get it On” to be similar enough to the sheet music of “Thinking Out Loud.” Following Judge Stanton’s order that the songs are substantially similar, the outlook is grim going forward for Sheeran. For one, the jury will be able to watch the video in which Sheeran switches from playing “Thinking Out Loud” to “Let’s Get it On.”
Griffin could also cite a 2013 case in which Marvin Gaye’s estate sued Robin Thicke and Pharrell Williams for their song “Blurred Lines.” Gaye’s estate claimed that “Blurred Lines” ripped off Marin Gaye’s “Got to Give it Up.” Gaye’s estate won simply because the “feel” of the song was copied. Although the case against Thicke and Williams occurred in a different district and circuit altogether, the “Let’s Get it On” team could convince a jury that the “feel” of “Thinking Out Loud” is a rip-off, especially with Sheeran’s video demonstrating this same “feel.”
From a policy standpoint, it can and should be argued that these types of “feel” arguments will be detrimental to the music business. There are hundreds of thousands of songs that have the same “feel,” especially in the popular music industry. The same goes for arguments that promote protection against the use of similar or the same chord progressions. While it is infringement to make an exact copy of a song, similar chord progressions are inevitable because there are only so many musical combinations. Additionally, a jury could determine that a song is a similar “feel” just because it is within the same genre, effectively forcing artists to avoid writing music for an entire genre.
The so-called “feel standard” is not a reasonably acceptable standard; there is absolutely no objectivity to it. There is no set test or set elements to this make belief “feel standard.” There is also simply no definition to what “feel” means or guidance on how far this “standard” extends. As the Sheerancase goes to trial, the court should be wary of this “feel standard.” The court should not adopt this standard, which has taken the Ninth Circuit down a problematic path that will ultimately ensure that no artist have any space to create new music.
 See Recording Academy / GRAMMYs, Ed Sheeran Song of the Year 58th GRAMMYs, Youtube (Feb. 15, 2016), https://www.youtube.com/watch?v=Hta9F0OrQ7U.
 See id.
 See Complaint for Copyright Infringement at 1, Griffin v. Sheeran, No. 17 CIV. 5221 (LLS) (S.D.N.Y. July 11, 2017).
 See Griffin v. Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *1 (S.D.N.Y. Jan. 3, 2019) (order denying summary judgment).
 See id.
 Plaintiff Memorandum of Law in Opposition to Defendant Motion for Summary Judgment at 8, 16, Griffin v. Sheeran, No. 17 CIV. 5221 (LLS) (S.D.N.Y. Sept. 7, 2018).
 Defendant Reply Memorandum of Law in Further Support of their Motion for Summary Judgment at 6-7, Griffin v. Sheeran, No. 17 CIV. 5221 (LLS) (S.D.N.Y. Sept. 7, 2018).
 Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *6 (order denying summary judgment).
 See id.
 See 17 U.S.C.A. § 501; see also Peter F. Gaito Architecture LLC v. Simon Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010) (holding there was no actual copying of the plaintiff’s building design because there was no substantial similarity to the defendant’s design).
 See 17 U.S.C. § 101 note (stating “this act does not provide copyright protection for any work that is in the public domain in the United States); see also Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *3 (order denying summary judgment).
See Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *1 (order denying summary judgment)
 See Plaintiff Memorandum of Law in Opposition to Defendant Motion for Summary Judgment at 8, Griffin v. Sheeran, No. 17 CIV. 5221 (LLS) (S.D.N.Y. Sept. 7, 2018).
 See livia4912, Thinking Out Loud (Lets Get it On) by Ed Sheeran, Youtube (Nov. 20, 2014), https://www.youtube.com/watch?v=RxZjVZKVN7k.
 See Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *10 (S.D.N.Y. Jan. 3, 2019) (order denying summary judgment).
 See id. at 11.
 See Skidmore v. Led Zeppelin, No. CV153462RGKAGRX, 2016 WL 1442461, at *1 (C.D. Cal. Apr. 8, 2016).
 See id.
 See Defendant Reply Memorandum of Law in Further Support of their Motion for Summary Judgment at 16, Griffin v. Sheeran, No. 17 CIV. 5221 (LLS) (S.D.N.Y. Sept. 7, 2018).
 See id.
 See Sheeran, No. 17 CIV. 5221 (LLS), 2019 WL 95482, at *17 (S.D.N.Y. Jan. 3, 2019) (order denying summary judgment).
 Williams v. Gaye, 885 F.3d 1150, 1150 (9th Cir. 2018)
 See id.
 See id.