Marvin Gaye has been dead for nearly 40 years. Ed Townsend, who co-wrote the classic song “Let’s Get It On” with Gaye, has been dead for 20 years. And yet here in 2023, pop singer-songwriter Ed Sheeran is having to defend himself in a lawsuit for violating the copyright of these two ghosts. Sheeran, it is alleged, recorded a song that sounds very slightly like “Let’s Get It On,” and should thereby pay royalties to Townsend’s estate. Last week in court, Ed Sheeran brought a guitar to the witness stand to show a jury of his peers how his song “Thinking Out Loud” differs from Gaye’s steamy classic. The jury will then have to decide whether Sheeran wrote a forbidden song using copyrighted chords.
From one perspective, the lawsuit against Sheeran can look pretty absurd. The two songs don’t sound very much alike at all. They don’t share any lyrics. You have to listen really closely to detect any “Let’s Get It On”-ness. Gaye’s song is sultry funk about, well, getting it on, while Sheeran’s is in a subgenre that I find it hard to describe without sounding contemptuous (I want to call it “whiny white boy acoustic heartache muzak”).
Sheeran himself has voiced exasperation with the lawsuit, suggesting that if he loses the lawsuit he may just give up writing music altogether. He has argued that both his song and “Let’s Get It On” use a ubiquitous chord progression, suggesting that a verdict against him would mean granting ownership rights over a basic building block of music that all musicians are entitled to use. Unfortunately for Sheeran, he once mashed up “Let’s Get It On” and “Thinking Out Loud” in a concert, which Townsend’s attorneys claim is “smoking gun” evidence of plagiarism, but Sheeran says only proves that a lot of pop songs are easy to meld together.
My emotional instincts are entirely with Sheeran in this case, despite my vastly greater preference for Marvin Gaye’s music. If this lawsuit succeeds, then every musician who segues from their song into an impromptu rendition of a copyrighted song in a live show will have to fear getting slapped with a similar lawsuit. It’s easy to see how that will stifle musical expression. Sheeran now probably regrets throwing in a little “Let’s Get It On” in concert, which is a shame, because it vastly improved his song and was a cool thing to do. And since Gaye and Townsend are dead and don’t care, why shouldn’t their work be a little remixable?
After all, the whole history of music (and the arts more broadly) is the history of taking what came before and reworking it. I don’t think it’s even possible to create something entirely original. Even the seemingly most original artists were often “original” in part because they were creative and eclectic thieves, taking from a diverse range of influences. Take the Beatles, for instance. I don’t think you can find more “originality” anywhere in music. Sgt. Pepper changed rock music forever. But it did so in part by broadening the sources that rock music “stole” from (Sgt. Pepper includes British music hall influences, classical Indian music, circus music, and avant-garde experimental music). When I first heard the Beatles’ “Lady Madonna” as a kid, I loved it, because I had never heard anything like it. Later on, I learned that not only is “Lady Madonna” steeped in the style of Fats Domino, but its piano part is an extremely obvious rip-off of British jazz musician Humphrey Lyttelton’s “Bad Penny Blues.” The Beatles cribbed different parts of Bobby Parker’s 1961 R&B single “Watch Your Step” for two of their hit singles (“I Feel Fine,” “Day Tripper”). Perhaps the most egregious theft in the entire Beatles’ catalog is the killer guitar intro to “Revolution” (the lyrics of which happen to be reactionary trash). Listen to Pee Wee Crayton’s 1954 “Do Unto Others” and you’ll hear a virtually identical opening.
Does this mean the Beatles weren’t original? No! Their encyclopedic knowledge of music is what allowed them to be original, because they were musical magpies who remixed and combined eclectic sources. It’s true that John Lennon nicked the line “here come ol’ flattop” from Chuck Berry for “Come Together,” but “Come Together” is still entirely different from a Chuck Berry song. (Lennon and Berry later performed together.) The more the Beatles broadened their influences, the more interesting their own music became, but it was through listening to the work of others that they nourished their creativity. (The Beatles inspired the Beach Boys who in turn inspired the Beatles, etc.)
In fact, even when a song seems “ripped off,” if you go back to the supposed “original,” you’ll often find that the originator themselves was just as much of a plagiarist. The Beach Boys’ “Surfin’ USA” was an obvious knockoff of Chuck Berry’s “Sweet Little Sixteen,” and Berry took successful legal action. Their “Fun Fun Fun” also lifts the opening of Berry’s “Roll Over Beethoven,” but they got away with that one, possibly because Berry himself had stolen it. The “Roll Over Beethoven” intro is reworked from the legendary intro to “Johnny B. Goode” (one of the most famous starts to a song of all time), but Berry himself had taken it from a 1946 Louis Jordan song called “Ain’t That Just Like a Woman.” In fact, Maybellene, Berry’s first hit record, which helped to invent rock and roll (you don’t get more original than kicking off a whole new genre) is reworked from a country number called “Ida Red.”
Austin Kleon, in Steal Like An Artist, explains that much supposed originality is, as the English writer William Ralph Inge once put it, just “undetected plagiarism.” “Every new idea is just a mashup or a remix of one or more previous ideas,” Kleon says, quoting musical artists from Jay-Z to David Bowie talking about how just as we are children of our parents, new ideas are the children of previous ones. The idea of creating totally unique and original art is a fantasy. It has never been done. The greatest innovators are themselves thieves; the Beatles stole from Berry who stole from Louis Jordan who himself was part of a musical tradition, his jump blues style borrowing from past boogie-woogie, jazz, and blues. It’s all “stolen,” if that’s the word you want to use, because we are not Individual Creative Geniuses, we are social creatures who exist within a culture and borrow from it to make whatever little original contribution we might have to make.
And yet: before we are tempted to say “case dismissed” in the matter of Townsend v. Sheeran, there’s something we’ve left out of the story, namely the long history of Black artists making musical innovations that were subsequently lifted by white artists who got rich off them. As Chris Jancelewicz of Canada’s Global News explains, the sordid truth of the history of pop music is the history of the exploitation of Black artists:
“As a white person born and raised in Canada, I’ve grown up believing that Janis Joplin wrote all of her biggest hits, as did the Beatles, Elvis Presley and any other big artist from the ’60s and ’70s. That’s not to say I’m naive to the songwriting process — I know that most songs have multiple collaborators — but what isn’t clear in pop culture history is how many songs were written by Black people and only made “famous” by white artists. In the majority of cases, it turns out most Black songwriters of those eras barely made a dime off of their creative work, while the white musicians found radio airtime, fame, money, and notoriety for generations using the exact same song. Many Black creators died penniless and nameless, without any credit for the music they brought to the world.”
There are endless cases in which a Black artist made some fantastically creative thing, someone else used it to make millions of dollars, and the original artist died in poverty. Listen to Junior Parker’s “Love My Baby” and then Elvis Presley’s early “Mystery Train” (itself a cover of another Parker song, and a song that helped make Presley famous) and you’ll hear influence/theft at its most obvious. This story is by now a familiar one, and those like Jancelewicz who grew up thinking their rock idols were originals have long since been disabused of the idea.
Copyright law is not solely an absurd stifling of creativity and remixing, then. It can also be used to try to rectify some of the injustice in cultural exploitation (a term my colleague Briahna Gray has suggested is more useful than the more common “cultural appropriation”). For instance, when we look down the list of music plagiarism lawsuits, we see that a lot of prominent cases are of Black artists trying to secure a share of the royalties from rich white artists. Consider the case of Beatle George Harrison, who was famously sued over his song “My Sweet Lord.” “My Sweet Lord” was a megahit for Harrison. It topped the charts, was voted “Single of the Year” in multiple polls, and won Harrison multiple songwriting awards. (It hit #1 again after Harrison’s death.) But the moment it was released, critics noted that parts of it sounded an awful lot like the Chiffons’ 1963 hit “He’s So Fine,” written by the Black songwriter Ronnie Mack, who had died tragically shortly after the song was released. The similarities were obvious (as you can hear in this mash-up version by The Belmonts), though Harrison contented that he had never consciously plagiarized Mack’s song.
We might point to the role of rip-offs in creativity and say that Harrison should have been entitled to rework Mack’s song. “My Sweet Lord” is clearly original, it’s in fact a very cool idea to rework parts of “He’s So Fine” into a song about God. The problem is that Mack played an important part in allowing Harrison to create something so catchy, and Harrison got paid a lot of money while Mack’s family got nothing.
In some ways, then, when we talk about these lawsuits, it’s a little misleading to frame them as being about the question of whether an artist can borrow. At the core of many of them is a different question: if an artist chooses to borrow, and reaps a huge financial reward from the result, should they have to share some of that reward with those they chose to borrow from? These lawsuits come about when songs are hits, meaning that someone has made a lot of money off something that somebody else played a big part in bringing about. The lawsuit over “The Lion Sleeps Tonight,” for instance, came about because its appearance in Disney’s The Lion King led to millions in royalties for the music company that owned it and nothing for the heirs of South African musician Solomon Linda, who wrote it.
Or consider the case of “Uptown Funk” by Mark Ronson featuring Bruno Mars. The song broke streaming records. The Recording Industry of America certified it 11 times platinum. It won awards. It has been used in commercials. It came out nearly ten years ago, and I still hear it all the time.
“Uptown Funk” is a kind of pastiche of late ’70s and ’80s funk songs. Ronson, like the Beatles, has a deep and authentic love of Black music, and the song rather brilliantly recreates (while updating for the 21st century) the style of a particular time. It’s not a cover of any one song, but it does weave lots of elements from different songs together. Its “uptown, funk you up” line is taken straight from the Gap Band’s “Oops Upside Your Head.” If you listen to Zapp’s “More Bounce to the Ounce,” Morris Day and the Time’s “Jungle Love,” Collage’s “Young Girls,” and Sequence’s “Funk You Up,” you can hear pretty much all of the ingredients that went into “Uptown Funk.” (Oh, plus the awesome theme song of BBC children’s nature program The Really Wild Show.)
And so there were lawsuits. The Gap Band received a portion of the royalties from “Uptown Funk.” (Or they were supposed to. A subsequent lawsuit said the music publisher failed to pay them.) Others were resolved with unclear outcomes. Ronson and Mars are doing just fine for themselves financially, don’t worry.
Are the “Uptown Funk” lawsuits absurd? In one way, yes, because there’s something ridiculous about trying to figure out exactly what portions of a pastiche of a whole genre can be credited to a given individual or group. (What percent of a song is the horn part, for instance?) On the other hand, there were only lawsuits because “Uptown Funk” brought in a ton of money, and it’s not totally unreasonable for those who hear their own songs recycled in it to go “Hey wait a minute, I wrote that bit!” and want their part of the proceeds.
If we don’t enforce copyright, it also leads to unfairness and absurdity. Consider the Amen break, a brief drum break in the middle of a B-side of a 1960s soul record by the Winstons. It is one of the most sampled recordings in all of musical history, having been used as the basis of thousands of hip-hop records. The drummer, it will not surprise you to hear, received no royalties and died homeless and impoverished in 2006. British fans organized a GoFundMe in 2015 to give some money to one of the group’s surviving members, which raised £24,000.
Of course, the Winstons themselves were not wholly original (it’s the “Amen” break because it’s the cover of a gospel song that the Impressions made famous). But there would seem to be a terrible injustice in a drummer creating something that good, that influential, and getting nothing for it.
Now, I don’t mean to get all “the problem here is actually capitalism” on you. But it’s clear that one reason these lawsuits are even necessary is that artists have to make a living, and the free market is not ensuring that those who do the work are given a fair reward. The story of the Amen break would be less tragic if the drummer had not died homeless and impoverished, i.e. if we guaranteed that every musician would be able to survive as a musician. The injustice here is not that someone has played music someone else wrote, but that one person has gotten rich and the other has suffered.
When you look at the list of music plagiarism lawsuits, for instance, you’ll see that quite a few of them involved Led Zeppelin. Led Zeppelin were completely shameless in taking old blues songs (or even riffs from other rock groups) and not giving songwriting credit. They became unbelievably famous and rich, and lived a disturbingly debauched lifestyle, spending their money lavishly. The lawsuits were an effort to ensure that at least some of this went to people like Howlin’ Wolf and Sonny Boy Williamson II who wrote the songs Led Zeppelin played.
But not entirely. Williamson II, for instance, had died years before Zeppelin performed his songs. So had Robert Johnson, whose 1930s blues songs became the basis of ’60s and ’70s Rolling Stones songs. Often (as in the case of Gaye and Townsend), these lawsuits are not launched by the artists themselves, but by their estates. And while we might like to think of the beneficiaries as a group of needy family members, we might also be talking about a music publishing company that is looking to maximize its profits. When Harrison was sued over “He’s So Fine,” for instance, it was by the company that owned the song, run by the infamously litigious rock manager Allen Klein. It’s not clear how much Mack’s surviving family actually stood to gain from the $500,000 verdict against Harrison.
And I’m not even sure that we should give descendants of artists much in the way of copyright protection. Frankly, as a socialist who is skeptical of inherited advantage, I’m inclined to think that when an artist dies their work should become public domain. At the very least, it should only be family members who get benefits, and not music companies, who are simply parasites. Why should everyone else have to restrict their creativity so that a music company can make more money off a dead artist whose rights they happen to control?
A system of “ownership” for music is ultimately a kind of absurdity. Music is passed down. The songs we sing were sung before us. Traditional folk music has never applied these weird notions of ownership and copyright. You hear a song, you play it, you can rework it. It’s yours, it’s everybody’s. Likewise, if you go back and listen to the development of rocksteady and reggae in 1960s Jamaica, you’ll hear that theft and remixing were essential. (There were few copyright protections on the island at the time.) One artist would record a track. The next artist would take that very track and record new vocals on it. The result is a rich musical culture where artists do not have to think about where something came from, only whether it’s good.
So we should have a world in which music simply isn’t owned. The problem is that in a free market society, the lack of enforcement of copyright protection creates injustices, as the history of the exploitation of Black musicians shows. Until we guarantee a standard of living for all musicians, and free them to create without having to worry about money, I do want people like the drummer from the Winstons to be able to get the proceeds from what they produced. But I ultimately want a musical culture where they don’t have to worry about a jury siding with them over a drum part, because they don’t need the money. I still think we should be careful about having courts do too much inquiry into whether one song sounds a little bit like another (I don’t think Robin Thicke should have been penalized over “Blurred Lines,” as horrible as both he and the song are). This is especially true because music publishing companies will be salivating if Sheeran loses his lawsuit, because they’ll look at the entire catalog of songs they own and start suing the shit out of anyone who has made anything sounding remotely similar.
But that doesn’t mean we can write off the issues here by just saying that “all culture involves borrowing.” It does, but the world we live in is one of gross economic inequality, and in such a world it’s actually important to try to redress some of the injustices in cases like Led Zeppelin passing off Black writers’ songs as their own. Led Zeppelin could have avoided lawsuits if they had simply done the decent thing of acknowledging credit and giving some royalties. They chose instead to snub those whose music they supposedly respected. It was wrong, and when artists do this, I don’t object to seeing a judge ordering the reallocation of some of their resulting wealth.
Nevertheless, let us always remember that the ultimate goal is a world in which music, like other public goods, is free for all to use, and isn’t privately “owned.” But socializing music cannot be achieved just by failing to enforce any existing ownership rights. It requires us to give the resources to musicians to allow them to practice their art without having to think about what “belongs” to any given person. All music should be everyone’s.
Many of the songs discussed here, plus a few other infamous cases, can be heard on my Spotify “Plagiarism Playlist.”