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Ed Sheeran gets his guitar out in court as song-theft case continues

By Chris Cooke | Published on Friday 28 April 2023

Ed Sheeran’s not the world’s most talented guitar player, that’s for certain. And don’t go dissing me for stating the obvious, not least because that’s according to Sheeran himself. And he was on the witness stand under oath when he delivered that statement, so we’re talking the truth, the whole truth and nothing but the truth. After all, Sheeran’s a song thief not a perjurer.

Oh, actually, he’s not a song thief either, is he? Or at least, that’s the position of Team Sheeran as the ‘Thinking Out Loud’ copyright case continues to go through the motions in New York. Sheeran is accused of ripping off Marvin Gaye’s ‘Let’s Get It On’ when writing his 2014 song. It’s the estate of the co-writer on the Gaye classic – Ed Townsend – who went legal claiming the copyright in the earlier work was infringed by the later release.

When he first popped up on the witness stand earlier this week, Sheeran was presented with a video of himself at a show in 2014 mashing together his song with ‘Let’s Get It On’ on stage. But you can mash together lots of pop songs – he told the court – because lots of pop songs are constructed using the same musical building blocks.

Yesterday, being questioned by his own lawyers, Sheeran talked about his music-making process. “I draw inspiration a lot from things in my life and family”, he said, according to the BBC.

‘Thinking Out Loud’ was written with his friend and collaborator Amy Wadge at his home in England, he explained. Wadge started the process by strumming some chords, and along the way Sheeran started using the phrase “I’m singing out now”. And that then morphed into “thinking out loud”.

“When I write vocal melodies, it’s like phonetics”, he added.

As he went into more detail about his songwriting process – both generally and in relation to ‘Thinking Out Loud’ – he grabbed his acoustic guitar to play the chord progression the song uses before singing the opening words.

Because, I mean, who doesn’t love an in-court sing-song? Though, he cautioned his courtroom audience, don’t get too excited because “I’m not the world’s most talented guitar player”.

Alongside Sheeran, the court also heard this week from a musicologist selected by the plaintiffs who was keen to stress that the two songs sound “very, very similar”. But then, musicologists always appear in disputes like this, with each side having an expert who backs up their position, to the extent that you feel they sort of cancel each other out.

Like most song-theft cases, the real question here is whether – when you have two songs that share certain short musical phrases – does that mean the later song infringes the copyright in the earlier one? Can those short musical phrases be protected by copyright in isolation, especially given how regularly they are used in the songwriting process?

With some notable exceptions, US judges have generally been nervous of extending copyright protection to short musical phrases. Although – as with this case – in the US courts it’s usually juries that initially get to decide whether there is a valid copyright claim. And once a jury is involved, it’s hard to predict what verdict will be reached.

Though when it comes to Sheeran not being the world’s greatest guitar player, on that I suspect judges and jurors will agree.