Thinking out loud on composers, craftsmanship and copycats

Following this Kat's post about the ongoing case relating to Marvin Gaye's song "Lets Get it on" and Ed Sheeran's "Thinking out loud". Kat friends from the University of Copenhagen have provided their perspective - Jakob Wested, Tenor sax- & Keys, Post doc, Center for Biomedical Innovation Law, University of Copenhagen  and Jørgen Blomqvist, Guitar & Song, Affiliate professor, Center for Information and Innovation Law, University of Copenhagen.

Here's what they say:

"Recently, the 9th Circuit Court of Appeals upheld a 2015 verdict finding Robin Thicket and Pharell Williams guilty of copyright infringement on Marvin Gaye´s song “Got to Give it Up”. Now another case raised by the Gaye Family has found its way to the court. This time it is Ed Sheeran and his tune “Thinking out Loud” that is in the line of fire for being too inspired by the Marvin Gaye hit “Let’s Get it On”. 

Marvin Gaye certainly made great and catchy songs that have been a great inspiration to many musicians for decades. In the recent legal action, it is stated that there are significant aesthetic similarities between Marvin and Ed’s two tunes. It is striking that the recent cases seem to be based on vague, ambiguous and subjective comparisons while objective analysis of the musical elements does not seem to have been sufficiently considered.  

Blockbuster hits seldom come from making something completely new, but are created by reshuffling various elements such as rhythm, chord progression and melody. Humans - and cats - seem to prefer recognizability. This makes it easier for us to tap our paw to the beat, yell along on the chorus or quickly catch the tune and join our own salient voice to the rest of the choir while congregating on the fence beneath the alley’s only lamp post. Most of the western music tradition is built around the chord progression known as I – IV – V – I. If you have a scale in a given key, and provide a consecutive numbering of each note in the scale  from I – VII. Then each of these steps have equivalent chords, which emerge when stacking every second note of the scale. Doing this in the key of C major will give you a scale consisting of the notes C-D-E-F-G-A-B-C, the chords associated with that would then be C-E-G (C-major), D-F-A (D-minor), E-G-H (E-minor), F-A-C (F-major), G-H-D (G-major), A-C-E (A-minor) and B-D-F (B-minor, diminished 5th). This system may be moved around in any of the 12 keys we operate with in western music. 

This leaves millions of possible combinations, particularly when you think about the possibility of modulating between the 12 different keys as well. However, the fact is that the vast majority of western music block busters that give us the comfortable or even arousing feeling of recognition we so love is based on the chord progression I – IV – V – I or variations of it. You can find this pattern in Mozart, Beethoven, Gershwin, Weber and Pink Floyd. It is just a nice progression! It builds up tension (I-IV-V) and then Resolves it (V-I). If played, most people would intuitively be able to hum along.     

There is a reason that the recent action brought on by the Marvin Gaye family [or the co-author's estate as in the Ed Sheeran case] refers to the aesthetic expression. Because the core component of the tune (and the tune allegedly copying it) is a I – IV – V – I progression with the same little variation to the bass progression, where the second chord is another I-chord, but played with the III note in the scale as the root note. Introduction of this inversion of the I-chord, is also a very common feature that is routinely introduced to this chord sequence by musicians and composers. What we can say for sure is that from this analytical perspective, both Marvin and Ed have been borrowing/inspired/copying from the vast treasure of music history. This inspiration is most prominent if you listen to the base line of both tunes that uses the I – III – IV – V – I step of the key. Imagine that we now have the two tracks of music and take away the very distinctive bass line that underscore the chord progression of the music. Would you perceive these two tunes as the same without that distinctive feature collected from the vast repositories of music history and inspired by the repetition hungry human mind? 

Musical Kats

The broader point is that before you discuss infringement of a composer’s rights, try to bring music history and tradition into the equation, too. 

In any creative industry, common patterns emerge and are used broadly – that goes for knitting, cooking, as well as music. For copyright to make sense you must acknowledge that most creative makings are also part of a tradition, and you have to “subtract” that tradition and see what is left before making claims of infringement. If not, the result would be either stifling of cultural expression or loss of legitimacy for the legislative protection of creative works in the eyes of the public. Either scenario would be a tragedy.

Another aspect of these cases points to some interesting consequences of the peculiarities of US law in this field. In most countries, there is a distinct difference between the different categories of protection granted for composers and performing artists, respectively. The musicians exercise a craft, which is certainly worthy of protection, but it has been granted under related rights without protection against imitation. Composers, on the other hand, enjoy protection against imitation to the extent that it affects the work as such, rather than the style or tradition that it follows. The present cases bring to mind the question whether the “feel” of the various recordings, that can be played to the jury, originates from the composer of the work of from the performance of it. Many modern musicians work from a sheet of paper indicating the lyrics and the harmonies and perhaps, but far from always, the melody line. Everything else on the recording is added by the musicians, typically under the guidance of the producer. Outside of the US, such additions will, at least to a large extent, be considered ‘musicians’ craft’ and not be protectable at all. If it really were considered protected in the US, harmful as it would be, it might be worthwhile examining who would then be the owner of those rights, because they may very well have been, say, absorbed by the contracts between the musicians and the phonogram producing company. In many ways, that would be an even worse outcome than just the over-stretching of copyright. It could more or less make phonogram-producing companies like Motown legal monopolists in their respective genres.

Neither monopoly nor appropriation of musical heritage and tradition fares well with these cats and - in our experience - with cats in general."