Imagine a painter wondering if they can use a certain shade of red without getting sued, says Elizabeth Nelson in The Washington Post. “Amazingly, in the music industry the aesthetic equivalent of this thought process is no longer as insane as it sounds.” This week, Ed Sheeran won a Manhattan court case in which he had been accused of ripping off Marvin Gaye’s 1973 classic Let’s Get It On with his own tune Thinking Out Loud. The lawsuit, brought by the family of Let’s Get It On’s co-writer, Ed Townsend, rested on the flimsiest of evidence: “A similar but not identical chord progression used by both songs as a principal motif.”
A chord progression – in simple terms, a sequence of grouped musical notes – is “the scaffolding on which essentially all songs are built”. The Townsend estate’s “nakedly cynical” argument obscured how much music relies on recycling these progressions. There are thousands of instances of chords played in the same order as Let’s Get It On that predate it, including several popular songs cited by Sheeran’s legal team. “The litigants no more ‘own’ that progression than they have a legal claim on the wind or the rain.” If their lawsuit had succeeded, it would have set a dangerous precedent that would have seen countless more musicians dragged into court. And it’s bitterly ironic that all this was being done in Gaye’s name: he was a peerless musical magpie who “wove together a rich tapestry of gospel, jazz, doo-wop and R&B into a thrilling and transporting original sound”.