The Marvin Gaye Versus Ed Sheeran Verdict: Not What You Think
Yesterday a New York jury determined that Ed Sheeran (and Amy Wadge)'s Thinking Out Loud did not Infringe Marvin Gaye (and Ed Townsend)'s Let's Get It On.
I immediately searched for side-by-side recordings to determine how similar they were.
But that's not what the verdict was about. At all. It's not even what the case was about, in the end.
The Case Was Not About Infringement of Any Song You've Ever Heard
The case was about a copyrighted musical composition, not any popular recording of Let's Get It On. In other words, it did not involve any version of Let's Get It On you have ever heard.
The jury did not consider whether the recorded versions were similar. The jury wasn't even allowed to hear any popular recording of Let's Get It On. (Dkt. 121)
Why? Copyright law.
Songs contain multiple different layers of copyrightable works. Some examples of those layers include:
Each of those layers can be further split into distinct elements. Each layer and each element must be considered when determining what is legally protectable and what is not. (Check out the verdict form below to see how nuanced that discussion can get.)
The recorded version of Let's Get It On was not at issue in the case. Only the musical composition, which is written on sheet music.
This is what the jury was asked to compare to the song Thinking Out Loud (ignoring the lyrics):
The presiding Judge determined that the jury should not be exposed to elements of any popular recording of Let's Get It On. Those recordings, he reasoned, contain elements that are not included in the sheet music. Some examples are the drums, bass-guitar, vocal embellishments (Marvin Gaye's unique sound), horns, and flutes.
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The Jury Did Not Decide Whether the Two Songs Were Similar
Copyright claims require proof of a number of things. One of them is actual copying. The jury must determine whether the defendant actually copied the work at issue.
That is separate from the question of whether any actual copying was wrongful. The wrongful part asks whether protectable elements of a work are substantially similar to elements in the accused work. It is a whole ball of legal wax—one the jury was able to avoid.
Here's an example of the difference. Pretend that I had never heard Let's Get It On. Pretend also that—by stroke of unimaginable luck or some miraculous occurrence—I created the exact same song. That's called independent creation. Independent creation is the opposite of actual copying. Because I did not actually copy Let's Get It On, my song could not infringe Marvin Gaye's (or Ed Townsend's or their heirs') rights.
That is what the jury determined. The jury decided that Thinking Out Loud was independently created.
You can see for yourself on the verdict form below. Because the jury found in favor of independent creation (not actual copying), they saved themselves a lot of work. They didn't have to address the question of how similar the protectable elements of the works were (from a legal perspective).
Thinking Out Loud About Blurred Lines
The Copyright Act is one of the broadest reaching federal laws.
For all its breadth, there is no saving grace in terms of clarity when applied to everyday life. Copyright law is blurred by at least two major confounders.
First, the question of wrongful copying (substantial similarity) is complicated. If you read through questions 2-7 of the verdict form above, you'll start to get a sense for how nuanced it can get. And that form only includes the questions left over after the Judge excluded many issues and arguments from the trial altogether.
When it comes to copyrightability in software or source code, things only get worse. The analysis above further divides into multiple "levels of abstraction."
Second, you cannot control the arguments an opponent might make. And it can be difficult to obtain an early ruling on copyright issues. Thus, technically complying with copyright law does not guarantee one will avoid costly and time-consuming litigation.
Because of those confounding factors—and many, many more in Copyright Law—I often think of copyright issues in terms of a risk map. Some issues are cut and dried; if every element of a work was independently created, the analysis might look more clear (like the left-most image at the top of this post). Most often, however, the issues are nuanced and factually complex. They often look more like a heatmap of risk (the right-most image at the top of this post).