Reports about a copyright lawsuit by Ed Townsend’s estate against Ed Sheeran recently caught my attention. The suit claims that Sheeran’s song “Thinking Out Loud” infringes on “Let’s Get It On,” usually attributed to Marvin Gaye but co-authored by Townsend. The claim was that Sheeran improperly used “harmonic progressions” and “melodic and rhythmic elements” from the earlier song, but a federal court has ruled there was no copyright violation. That got me thinking about the whole issue of song copyrights.

To start by making my own views clear, I’m in favor of copyright. Some libertarians argue that creative works aren’t tangible objects and thus shouldn’t be subject to property rights, but I think the concept of ownership is as applicable to creations of the mind as to physical creations. Copyright prevents one person (or corporation) from taking someone else’s creation and profiting without getting consent or offering compensation. I think 95-year copyrights are inappropriate, but living creators should enjoy protection against the appropriation of their work.

But this leaves the question open of exactly what constitutes appropriation. The issues are especially difficult in short musical works. How similar does one song have to be to another to infringe on it? There are only seven notes in the diatonic scale, and most sequences of them don’t make good melodies. Coincidental resemblance happens all the time.

In the Baroque era, composers constantly copied each other without thinking much about it. Music was written for the occasion and then mostly forgotten. If J. S. Bach was up against a deadline for the Sunday service, he might grab a chorale tune by someone else. In later years, as composers became freelancers, the lifespan of a work grew longer, and lifting someone else’s music required at least giving credit and doing something original with it. Songwriters still recycle out-of-copyright music for their songs. Listen, for example, to “I Don’t Know How to Love Him” from Jesus Christ Superstar and then to the second movement of Mendelssohn’s Violin Concerto.

Today lawyers are everywhere, and everything that can make money is scrutinized. I’ve written lots of songs, but I’ve never been bothered because I don’t write them for money. Occasionally I’ve received some tiny royalty payments, my songs on Bandcamp have brought in a few dollars, and I once got $75 for an entry in a song contest, but that’s not enough to get a lawyer’s interest. In this matter I’m an onlooker, not a participant. It’s just interesting to look at how some notable cases have gone.

Some notable cases

In a highly publicized 1976 case, George Harrison’s song “My Sweet Lord” was accused of infringing on “She’s So Fine” by the Chiffons. Harrison said he didn’t intentionally copy the tune, but in this case copyright violation didn’t depend on intent. I know how easy it is to come up with a tune and only later (or not at all) realize it’s an existing tune. The songs are certainly similar; here’s a YouTube video that plays the two songs in counterpoint. The video, I should mention, is seriously wrong in saying Harrison was “convicted” of anything; it was a civil lawsuit, not a criminal charge. He just had to pay a large chunk of money to the plaintiff.

The 2 Live Crew case deals with another issue of copyright, which is fair use for purposes of parody. The group issued a parody of Roy Orbison’s “Oh, Pretty Woman” that would have been rated R or worse if it were a movie. They had asked for permission and offered a share of the royalties, but Orbison’s publisher refused. After the parody’s release, the publisher of the original song sued for copyright violation. 2 Live Crew argued fair use, and the case went to the Supreme Court. The Court ruled unanimously in 2 Live Crew’s favor, citing its commentary on the original song as a decisive factor.

Widespread claims on the early Internet misinterpreted the decision as saying anyone can record new lyrics to an existing tune and publish them without infringing copyright. That’s not what the ruling said. Parody, for this purpose, doesn’t mean just writing new lyrics but making a comment on the original work. Even if your parody passes that test but uses more of the original than strictly necessary (e.g., the whole tune), you could still be on the losing end of a copyright lawsuit.

What about “Thinking Out Loud” vs. “Let’s Get It On”? Here’s a YouTube video comparing the songs. The bass lines and chord progressions are very similar, but the melodies have little resemblance. (The lyrics aren’t an issue in this case.) Personally, I’d say that bass lines and chords are just the common material of songs unless they’re really unusual. I’m no lawyer, but the jury’s verdict agrees with my thinking.

Blurry lines

If you write and sell a song, do you have to check it against every other song in copyright to find out if you’re safe? There’s probably software to do this, but it has to apply some criteria of similarity, and a judge might not agree with it. The lines are blurry, giving me an obvious lead-in to another case.

Gaye’s estate sued in 2013 over the song “Blurred Lines” by Robin Thicke and Pharrell Williams, claiming it infringed on Gaye’s “Got to Give It Up.” A court ruled in the Gaye family’s favor in 2015, and an appeal later went the same way. The decision was, according to some articles I’ve read, based on the similar “feel” of the songs. If that’s accurate, it’s insane. It would mean there could be only one Viennese waltz, one rock ‘n’ roll song, one blues song, etc., and all the rest would be copyright violations.

Maybe I’m lucky that I’ve never made significant money from my songs. I can perform them whenever I want, and the worst I’m ever likely to be hit with is a takedown notice or a ban from a website.