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Are We Going to Run Out of Songs?

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A-MNEMONIC’s Rob Dunham discuss the up-coming Ed Sheeran copyright case

Are We Going to Run Out of Songs?

I’ve always loved pop. In most of its forms. 60,000 songs are uploaded to Spotify daily. 22 million tracks per year. That’s 83 million on one platform. Estimates vary wildly, Gracenote says: in the world, there are an estimated 1.5 billion songs. Amazing to think, given there are only 12 notes. At some point, are we going to run out of songs?

15% of singles this year contain, either a direct sample or, elements of other songs, like a bass line, hook or melody. Sometimes only using a few bars of the original recording. Sometimes the original hook, melody or groove is physically replayed. TikTok has thrown up some fantastic mashups. The most unlikely Bee Gees “Stayin Alive” mixed with Eminem’s “Without Me” is strangely genius. Is there too much ‘borrowing’ going on?

Since the jury’s surprise verdict in the Robin Thicke/ Pharrell Williams vs. Marvin Gaye case, songwriters are terrified of taking ‘inspiration from’ the feel or groove of an existing classic track. As a result, songwriters are cautiously crediting their ‘borrowed co-writers’ to avoid being sued. Perhaps unsurprisingly, living in fear. As a result of this case, the numbers of credited co-writers on many big commercial songs has grown substantially. According to research by Music Week, since the court case, it took an average of 5.34 people to write last year's Top 100 biggest singles.

Thankfully, music copyright cases with a jury are rare. However, as we saw with Thicke/Williams vs. Gaye, jury’s verdicts can be very, very unpredictable.

I fear the long running Ed Sheeran versus Townsend copyright case, finally in court next year with a jury, may go the same way. If Ed Sheeran loses, it will have repercussions for songwriters far beyond a dent in Ed's bank balance.

Sheeran has been accused of nicking substantial elements of Townsend’s “Let's Get It On” for his “Thinking Out Loud” hit. Sheeran’s sticking to his guns. Good for him. He’s confident any similar elements between the two are ‘not protected’.

Not everything in music is protected by copyright. Nobody can own ‘commonplace’ chord progressions. Or tempos, or structure. They are unprotected - common building blocks of music. Or at least they were. Townsend’s estate has accused Sheeran of nicking these ‘commonplace elements. The arguments may get very silly. And Sheeran is cavalier.

Townsend’s melody and lyrics (coincidentally also sung by Gaye) had an improvisational feel, the lyrics fluid and meandering.

Sheeran's melody is structured, repeatable and easily catchy - pop. No similarity there. Don’t forget the words are different too.

The tempos are similar. Both sides agree the chord progressions are the same: Four very common chords looped round and round. Very, very common chords in pop music. D - FMinor - G - A. or written another way: if you know “Do, re mi, fa so la ti da” those chords are written Do, Mi, Fa and So.

When you listen to the two songs, (if you can - disregarding the similar chords) they do have a similar ‘feel’. And Sheeran says the elements that are the same are not parts that can be protected by copyright.

And now it will go before a jury. So anything can happen. 

Musicologist Brian McBrearty puts it brilliantly: "Unbelievably here the plaintiffs might never even mention melody or notes. Imagine it. They are possibly going to argue pop song infringement while painstakingly avoiding any discussion of melodies and lyrics since both are, if anything, exceptionally unalike."

Unfortunately, Sheeran had his own Thicke moment in front of 50,000 fans at Wembley. While performing the song he substituted his lyrics for Townsend’s. The jury will love that.

I think the jury will find it a tough. Comparing and contrasting two songs whilst, at the same time, disregarding specific elements - like the chords, or the feel or the bass line – is difficult.

One thing you can be sure of - where there’s a hit there’s a writ.

Here’s a clip of both songs.


What do you think?

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A-MNEMONIC | Music & Audio Sonic Branding Agency, Thu, 20 Oct 2022 10:48:07 GMT