The Washington PostDemocracy Dies in Darkness

Opinion The Ed Sheeran lawsuit is a threat to Western civilization. Really.

Musician Ed Sheeran arrives at federal court in New York on April 25. (Yuki Iwamura/Bloomberg News)
4 min

Elizabeth Nelson is a singer and songwriter with the D.C.-based band the Paranoid Style.

Imagine a painter in their studio, preparing for an exhibition. The painter is working on a landscape. The sky is midnight blue. The valley is Kelly green. Mountains loom in the back, a spectacular hue reflecting off a brilliant sunset. The painter reaches for vermillion and then pauses. Wait a second, they think: Does someone own the copyright to this shade of red? Am I going to get sued for this?

That would be crazy, right? Regrettably and amazingly, in the music industry the aesthetic equivalent of this thought process is no longer as insane as it sounds.

The question of who is allowed unfettered access to the metaphorical color palette of songwriting is currently on trial in federal court in Manhattan. The English singer and songwriter Ed Sheeran has been accused of stealing his song “Thinking Out Loud” from Marvin Gaye’s 1973 classic “Let’s Get It On,” by the wife and descendants of that song’s co-writer, Ed Townsend. The supposed evidence? A similar but not identical chord progression used by both songs as a principal motif.

In its simplest terms, a chord progression is a sequence of grouped notes arrayed in the chosen manner of a composer to create a melody, the scaffolding on which essentially all songs are built.

To complete the metaphor, the lawsuit and its implications are the musical version of saying to a painter: You’ll have to pay to use red. Someone else used it first.

The dispute boils down to whether the millennia-long continuum of music-making is a valuable tradition that should be vouchsafed for future generations of composers, songwriters and listeners, or alternatively that entire swaths of the fundamental vernacular of a human art form should be divided up and parceled out as intellectual property for the private use and profit of a few.

Even by the standards of our time, this attempt to consolidate and monetize the joy and wonder of personal expression is sinister on an almost shocking scale. The potential ramifications and reverberations verge on the unspeakable.

The case presented by the Townsend estate is nakedly cynical and designed to play on fundamental and understandable misapprehensions about how songs are created. Much like math or writing, music is limitless in its possibilities but paradoxically required to repeat itself. The notion of copyrighting any chord progression, let alone one as common as the one used in “Let’s Get It On,” makes no more sense than copyrighting the numbers six and 13 or the conjunctions “and” or “but.”

Gaye was a full-stop genius, Townsend a fine songwriter, and “Let’s Get It On” an objectively great song. But the litigants no more “own” that progression than they have a legal claim on the wind or the rain. It is elemental. There are thousands of instances of those chords played in that order that predate “Let’s Get It On,” including several popular ones cited by Sheeran’s legal team. Such things are, and must always remain, the property of the global human consciousness.

The alternative is a grotesque step in the direction of madness. Already, software exists that can mine recorded music and uncover more or less limitless instances where various songs are “similar” to other ones. If Sheeran is forced to share writing credits and pay damages to the Townsend estate, it will further embolden the ill-motivated and litigious to drag artists into court and demand they prove the unprovable: that they were not, on any conscious or subconscious level, inspired by another piece of music.

Greed has already ravaged a once thriving, if highly imperfect, ecosystem of songwriters and performers. The streaming economy has systematically disassembled that infrastructure — suffocating the revenue streams of all but the most bankable entities and selling off the entire history of recorded music as a loss leader to peddle cellphone data plans.

This trial is the next horizon. If artists must pay a tax for employing the most common modes and tones of composition, the process of grinding popular music down to a consensus-driven pay window for tech entrepreneurs and corporate opportunists will have reached its apotheosis.

Gaye was a seminal American artist who wove together a rich tapestry of gospel, jazz, doo-wop and R&B into a thrilling and transporting original sound. He is something like the poster child for why restrictions of the kind threatened by this litigation would be an ahistoric blight.

With “Let’s Get It On,” Gaye and Townsend painted a beautiful musical landscape. With its wildly overreaching cash grab of a lawsuit, Townsend’s estate seeks to claim nature for itself.