There’s an adage, of obscure provenance, that music executives love to quote whenever another copyright infringement lawsuit comes along: “Where there’s a hit, there’s a subpoena.”
The trial over Ed Sheeran’s Grammy-winning song “Thinking Out Loud” (2014), which began Monday in Manhattan’s Federal District Court, is the latest in a long line of music copyright lawsuits. In the United States, it dates back at least to 1844, when a New York judge heard a case involving the unauthorized reproduction of a song called “The Cot Beneath the Hill.” The plaintiff was awarded $625 in damages, according to a historical database maintained by attorney Charles Cronin.
For Sheeran, there is much more at stake. He is accused of copying passages from Marvin Gaye’s “Let’s Get It On” (1973); the family of Ed Townsend, Gaye’s co-writer, filed the lawsuit in 2017. If Sheeran is found liable, a jury will determine damages, which would likely run into the millions.
Here’s a guide to some of the most sweeping music copyright cases of the past few decades, along with excerpts from their recordings.
But remember, it can be tricky and even misleading to just compare recordings. In such cases, the only material involved is the underlying compositions of the songs: the melodies, chords and lyrics that can be written down on paper. Elements specific to the performance captured in a particular recording, such as the tempo or timbre of an instrument, are irrelevant.
Juries must decide not only whether one song copies another song, but also whether the earlier song was original and distinctive enough to be copyrighted.
“The problem with cases like this is that people are asking the wrong question,” said Joe Bennett, a professor at Berklee College of Music who works as a court forensic musicologist. “They’re asking, ‘How similar is track B to track A,’ when they really should be asking how original track A is.”
Have it? In that case, put on your headphones and judge for yourself.
Bright Tunes Music v. Harrisongs Music (1976)
