Host Victor Blackwell interviews Professor Joe Bennett. CNN news, Sunday April 30, 2023
Blackwell: Ed sheeran played to an intimate crowd in New York on Friday: a jury in a Manhattan courtroom. They will decide whether he copied Marvin Gaye’s classic Let’s Get It On in his hit Thinking Out Loud. We’re going to play both of them for you now so you can hear the similarity [plays both songs with LGO transposed into D major] It’s really similar! Joe Bennett is a professor at Berklee College of Music. He served as an expert witness in cases like this. All right. First, let’s just ask the big question – is this copyright infringement?
Bennett: Absolutely not. This is a very simple, commonplace chord sequence that appears in lots of songs. And that’s the reason we hear the similarity. If you listen really carefully, past those four chords that keep ascending in a two bar loop, you’ll notice that there are no lyrics the same, no melody the same, in the verse or the chorus. So what we have is two completely different songs with slightly similar backing tracks.
Song similarity vs originality
Blackwell: You know what’s interesting? I read that you said that often we’re asking the wrong question here. The question should not be “how similar is song B to song A”; instead it should be “how original is song A?” Explain that.
Bennett: Yes. So obviously, Let’s Get It On is a stone cold classic and a fantastic, unique melody and a great lyric, as indeed is Thinking Out Loud – separately! But the particular backing that it uses – that four chord, two bar loop – appears in lots of songs. And because it appears in lots of songs, it’s what courts and musicologists call a ‘commonplace element’ that is therefore not protected by copyright. So I’ll just demonstrate on guitar, if I may.
Bennett: You played both of the songs there in that segment mashed up into the key of D (they’re actually in different keys) so that we can hear the similarities – that’s quite a common thing to do. So Thinking Out Loud, as we heard, has this loop [plays D D/F# G A]. Let’s Get It On has this loop [plays D F#m G A]. So, similar but not identical. But if we just take D, F#m, G and A – that for example is the same chords as Van Morrison’s Have I Told You Lately from 1989. It is Georgy Girl by The Seekers from 1967, which is a little faster, but the same chords [plays D F#m G A]. Lionel Richie Stuck On You [plays D F#m G A]. Shania Twain’s Still The One. I mean, there are so many songs that use this very well loved chord sequence. So you could do the same mashup technique with those and you’d get the same result.
Juries in music copyright litigation
Blackwell: So I am fascinated. I don’t know how much time the producer has allocated for this segment, but I got more questions now! So if you say you’ve played these chords with so many songs that we all know now, then when is there actual copyright infringement? If we’re talking chords and melodic phrasing because we’ve got, what, thousands, maybe millions of songs over the decades of song copyrights, are there for fewer legitimate copyright infringement award chords than there should be, because you’ve got juries deciding this, and not people like you deciding this.
Bennett: Yes, and I think that’s a problem that’s very particular to the USA, because most other countries, when they hear – in the courts – when they hear cases of music copyright infringement litigation, a jury is not involved, precisely because a jury is not a group of expert songwriters. That means… because juries by definition are randomly selected – that means that they are unable, without a lot of guidance, to separate a commonplace element, like a chord loop, that is not protected by copyright, from a musically unique element – that is, something like a top line melody or a lyric. And they just hear subjective similarity and then jump to, in my opinion , the wrong conclusion that the only explanation for that similarity is plagiarism.
Sampling as obvious plagiarism
Blackwell: So then what’s the line if we’re not taking direct lyrics? Right? I know you pointed out to one of my producers Diddy’s, what was it, [I’ll Be] Missing You? and Every Breath You Take, right? That was a direct lift. I mean, everybody who heard it knew, oh, he must be sampling this, but he didn’t get permission, right, Initially? But what’s the line here? If you are playing a chord, that as you demonstrated, so many have used?
Bennett: Well, in the case of that very famous example of plagiarism, that was an example of sampling. So in 1997, Puff Daddy took an eight bar sequence, the very famous guitar riff from The Police’s 1983 track Every Breath You Take and slightly pitch shifted it: actually just looped that sample. So effectively in music industry terms, he was infringing two copyrights: the musical work – that is the song – and the sound recording – because he was using The Police’s actual recording and inserting it into I’ll Be Missing You as a backing track. So that was blatant. It was obvious. He didn’t ask permission, and it cost him 100% of the royalties. And I would say rightly so, because there’s no doubt about it in the case of obvious sampling like this. But the point is, he wasn’t copying a commonplace element. Yeah, he was actually taking this very specific element to Every Breath You Take.
And with cases like this [Griffin v Sheeran], I think some plaintiffs are perhaps guilty of being a little opportunistic because they know that a jury is going to hear subjective similarity and they can kind of leverage that to, you know, try and get the defendant to cave on this case. And full credit to Ed Sheeran: I feel like he’s standing up for songwriters everywhere by sticking to his integrity and, you know, holding out for the truth.
Blackwell: Well, we remember and we’ve gotta wrap here that there were just a few years ago, Marvin Gaye’s family: they were awarded $5 million dollars after the copied right case involving Robin Thicke and Blurred Lines and Got To Give It Up – Marvin Gaye’s classic. Professor Bennett, man, this has been an education! I appreciate it. I’m going to request something. Can you play us off the break here?
Bennett: Well, I’m happy to play you that chord loop so people can sing along.
Blackwell: Yeah, let’s hear it. Whatever song they would like. All right, let’s do it.
Bennett: [plays D D/F# G A] / [loops D F#m G A]