Thinking Out Loud: What Ed Sheeran’s copyright trial means for the music industry
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For the past 10 years, lawyers in the US have been arguing about two songs. They've been fighting over alleged similarities between Ed Sheeran's Thinking Out Loud and Marvin Gaye's Let's Get It On, which, sadly, I'm not able to play for you because we don't have the rights.

But you'll probably have heard them. The Marvin Gaye track has been played in countless films and TV shows, and Thinking Out Loud has been streamed on Spotify more than 2.8 billion times. The YouTube music video has been played more than 3.8 billion times, and it won Song of the Year at the Grammys in 2016.

But Ed Sheeran and his co-writer Amy Wodge haven't always been able to bask in their success because of these legal battles. Now that fight is over. Earlier this week, the US Supreme Court rejected an attempt to revive the case. And on today's episode, you're going to hear more about that case. We'll also take a look at how copyright works in the music industry and how songwriters can protect their songs. I'm Hannah Gelbart, and this is What In The World from the BBC World Service. ♪

So let's get into this now with the BBC's music correspondent, Mark Savage. Hi. Hello, how are you doing? Good, thank you so much for coming in. Before we get into it, can you explain what copyright means and how it works? It's a very important thing.

It's pretty much what it says. It is the right you have to make a copy of an existing piece of work, whether that's a bit of writing, a bit of music, a photograph. The person who made the original holds all of those rights. Someone else can only make a copy of it if they've got permission. OK, so with that in mind, tell me about the basics of this case. What is it that Ed Sheeran and his co-writer Amy Wodge were accused of?

So they wrote Thinking Out Loud almost by accident in 2014. Amy was an old friend of Ed's. She went to visit him as he was finishing up his album and they were just hanging out. And then he started strumming some chords, she started singing, and this song came out of thin air.

But then it went on to become a massive hit. It won a Grammy Award for Song of the Year. And the estate of Marvin Gaye's co-writer on the song Let's Get It On went, wait a minute, this is a bit too similar to Let's Get It On. We think that you have stolen this.

and both the family of this guy called Ed Times End and another company that owned a portion of the copyright sued Ed Sheeran and Amy Wodge in court in America. What were the alleged similarities between the two songs? So if you play them back to back, you can hear it. The chord structure that underpins the song is very similar to

They're not quite the same chords, they're in different keys, but if you transpose them together, you can hear that the kind of harmonic elements are very similar. They have a similar syncopation, which means that the beat lags slightly behind, which gives them both a yearning quality. In Marvin Gaye's case, that's to explore sexual tension. In Ed Sheeran's song, it's more about yearning and longing for this partner that you've loved your whole life. And it was actually written about his grandparents, which is very sweet.

So they argued that that constituted infringement. In court, Ed Sheeran's lawyers said, well, actually, these chords are incredibly common. They were used before Marvin Gaye wrote his song. They were used after it. They cited examples like Stand By Me by Benny King or Easy by the Commodores and said, you know, you can't copyright this sequence that is common to hundreds and hundreds of songs because then...

all music would fall apart. If everybody who wrote a song based on those elements had to pay Marvin Gaye and his co-writer a credit, then nobody would make any music anymore. And in fact, Ed Sheeran said in court, if they win, I'm quitting. And in the end, he didn't have to.

And what were the stakes for Ed and Amy? How much money did the song make? How much could they have lost in this court battle? We never know exactly how much people have made in the music industry, but a song like this that's been number one for weeks and is on one of the best-selling albums of the 2010s, you're talking tens of millions of dollars. And that's certainly what they were sued for. I think the amount in damages that they were sued for was around $100 million. So a lot of money that they would have had to hand over had they lost

But I think also reputationally, it's bad for a songwriter to be accused of theft. And that's one of the reasons that Ed Sheeran, when he has been accused of these things, has let it go to trial. Often people settle out of court. You see artists adding other writers to the credits of their songs after they're published and going, fair enough.

You know, maybe I was influenced by you, but Ed has always been very, very certain of where his inspiration comes from. On this case in particular, he said, no way, this was a genuine independent creation. Why did it take so long, 10 years, to sort this case out?

It's partly because, as we said earlier, there were two cases, one from the family and one from this investment firm that owns a part of the copyright. And partly because after they first went to trial, the jury found in Ed's favour and then it was appealed again and again until it went to the Supreme Court on Monday and they said, we're not going to hear this case. This is where it stops. Why did they say they weren't going to hear this case? Because it had just gone on and on?

No, they agreed with what the jury had said in the original trials that these building blocks of the songs were not copyrightable elements and said, you're not going to have a case. We're not going to overturn this ruling.

And the songwriter Amy Wodge, who co-wrote Thinking Out Loud, spoke to the BBC and she talked about what it was like having these accusations hanging over her. The absolute truth is that that song sort of changed my life. I didn't have a hit till I was 37 and that was the one. And then I was able to feel like I'd had a hit for a year and then all of a sudden I

It felt like the walls were surrounding. And so it was incredibly frightening. And had we lost that case, I could have effectively lost everything. It was certainly a financial threat, but there was also this, you know, huge sort of existential threat of what it actually meant for the world of songwriting and for songwriters in general. And I always felt the weight of that because people would tell me, you know, everybody is looking at this case. And I just knew that had they been successful,

it really would have caused a huge issue for creativity in general. So it was a big, big responsibility. More widely now, if people sue others for copyright in the music business, is that a new phenomenon or is that something that we have seen for years as long as music itself has been around? It is something that has been going on for a very long time because, as you know, people who make music make money and where there's money, there's lawsuits.

You know, you can trace this back to George Harrison. He was sued over his song My Sweet Lord in the 1970s. There was a very famous long-running case over Led Zeppelin's Stairway to Heaven. You know, everyone from Katy Perry and Paula Abdul all the way up to Ed Sheeran have been sued over potential and often unproven copyright claims. And they are actually quite hard to prove. You have to meet quite a high bar to prove that someone has infringed a copyright. For example,

one of the tests is that the artist in question had to have access to the song they're accused of copying. So if you can't prove... It's very difficult to prove it. When Ed Sheeran was sued over Shape of You in the UK by another songwriter, they tried to establish that they had sent a copy of their song to a friend of his who might have played it to Ed, but in the end there was no way of proving that Ed had ever heard it.

And that was one of the pillars on which that case fell down. So if an artist thinks their song has been plagiarised, what steps can someone take to get justice?

There's something called the Byrne Convention, which covers copyright, and there's over 170 countries or signatories to that. So no matter where you are in the world, if you're a songwriter in Europe who feels like an artist in America has infringed their copyright, you can take them to court in the country where the song's copyright was registered or where the publisher resides.

You will have to abide by that country's laws, if it's in America or if it's in France, no matter where. But you do have the right to challenge them on that copyright. The other thing is you have to prove that your work was copyrighted in the first place. So one of the first things that musicians get told when they start writing songs is make sure you have a record of when it was written,

what date that was, that you have a hard copy. Often the advice used to be in the old days to send yourself a copy in the post and not open the envelope so that you had a date stamp on it. These days, obviously, you can kind of trace the date that things were created in software all the way back to, you know, the very first demo. So that's less of a matter. But yeah, just making sure that you have a real solid trail of your ownership of the original song.

How often is it that an artist is actually found guilty of plagiarism? Well, the very famous one is the Pharrell Williams and Robin Thicke trial, where they were found guilty of copying another Marvin Gaye song when they wrote Blurred Lines. And one of the key elements in that trial I was talking about was

how access to the original is important. There was actually a Pharrell Williams interview where he talked about trying to copy the feel of the Marvin Gaye song, which was key evidence in the trial. But that's a very controversial ruling because the jury ruled that they were copying each other

Even though there were no real melodic similarities, the chord sequences were different, what they argued was that the feeling of the song, the groove of the song, had infringed copyright. And that was a very novel concept and one that frightened a lot of people in the music industry because obviously disco as a genre is based on a groove. And if you can copyright that one very basic element...

then it's very, very hard to create anything new that doesn't infringe copyright. There's been a lot of hair torn out in record company boardrooms over whether that verdict makes it more difficult for creators in the long run. People sample other people's songs all the time. How does sampling work?

Well, sampling is something that arose with the rise of computer software in the 1980s. And you could go back and you could take a loop or a beat or a bar of somebody else's music and turn it into a full song. And in the early days, it was the Wild West. Anybody just lifted a piece of music that they'd got off a piece of vinyl and threw it into their song and they didn't credit anyone. And that became very quickly actionable in court. James Brown, one of the most sampled artists of all time,

famously said it was essentially stealing his music from him. And within the first five years of sampling becoming a real force in music, a legal framework was established under which you had to get permission, the samples had to be cleared. There are many famous songs that never saw the light of day because the sample was not given permission. Sampling is less common now than it used to be because it can be very expensive, so it's only really...

your Jay-Z's and your Beyonce's and The Weeknd artists at the top of the tree who can afford to sample someone else's work because obviously it cuts into their own earnings from the song. But yes, there is a very clear process these days over getting permission and giving credit.

Isn't there a whole thing about people copying music by accident or the subconscious mind absorbing music? And then if you are working in the creative industry, could that not come out and serve as inspiration for another song? How would that work? Yeah, I think we've all done it, haven't we? Thought we've had an original idea and then two days later gone, oh no, wait a minute, I read that in a book.

It's called Kryptonisia. That's the scientific term for it. Bruno Mars and Mark Ronson did the same thing with Uptown Funk, where they gave credit to the writers of the Gap Band's Oops Upside Your Head, because, again, there were some similarities. So, of course, it happens all the time.

You know, from the beginnings of music, every song has built on the traditions in that genre. Folk music is completely iterative. It is constantly redeveloping and refining the same ideas and people go back to old songs and update them. And that's OK. But I think what has become more prevalent in the last 10 years, especially because of the blurred lines trial...

is that people will be more conscious about giving credit to their forebears. I think that's what really comes up in this particular case, is Ed Sheeran saying that these are four chords that are used time and time again in music, and hopefully it will liberate artists to be able to use those chords creatively and not feel that the weight of copyright law will be hanging over them.

Yes, exactly. And, you know, there are famous videos on YouTube where you can go and that same four chord sequence gets played and you can sing 30 songs over the top of it because, you know, pop music is it taps into our tribal memories. Right. So you're always listening back.

to songs that remind you of something else, a song that's instantly recognisable or gives you a sense of nostalgia is very effective. And so those chords evoke a feeling for a reason. You know, they are part of our cultural memory. So to try and copyright them would cause carnage. You know, it would literally put the brakes on the music industry. So winning cases like this...

is important for Ed Sheeran personally, but I think as someone who is incredibly well versed in music, he understands the value of protecting those building blocks for everybody else as well. Mark, thank you so much. Thank you for having me. That is it for today. Thank you so much for joining us. I'm Hannah Gelbart. This is What In The World from the BBC World Service and we'll see you next time.