Sorry v. Ring The Bell | Musicology says Bieber Not Guilty.

On May 25, 2016 Justin Bieber and his co-conspirators got hit with a copyright lawsuit alleging that his mega-hit “Sorry” infringes upon White Hinterland’s track, “Ring The Bell.” You only have to listen to the first 10 seconds of each track to hear what the fuss is about.

As my eight-year old just succinctly put it, “They sound like the same thing.” What tiny measure of “Belieber” that remained in my daughter has just left the building. “Good for you, Girl. You sue him!” she just yelled, as she exited the room. She isn’t wrong. They do sound a lot like the same thing. The second biggest pop star in the world may well decide to pay and settle this quietly. But forensic musicology says, he shouldn’t.

Popular Musicology Opinion: Not guilty.

We’re going to explore this in great detail. The filed complaint is right in front of me and we’ll begin by looking at its claims one by one. The plaintiff’s arguments are in bold, and my comments follow in italics.

Getting right to it, they begin with…

Plaintiff’s “Ring the Bell” opens up with the signature and unique vocal riff, which provides the introduction and primary musical motive for the structure of the song. This vocal riff – also referred to as a loop, chant, or hook – is crucial to the sound recording and composition of “Ring the Bell,” creating the backbone for the composition and the song’s initial hook. After opening the song, the vocal riff repeats throughout, serving as a unifying thread for “Ring the Bell.”

That’s a whole series of claims and even though they’re talking about their OWN track, “Ring The Bell” it would be lazy to accept it all wholesale. Some of it though is simple fact. The riff in question is indeed the first thing you hear in both “Ring the Bell,” and “Sorry.” It would be hard to argue that the riff isn’t “the introduction” and “the song’s initial hook.” 

Thereafter, they ask us to accept a lot. They call this riff the primary motive,  the backbone, and the unifying thread, crucial to the record and the song. (The record and the song are different things, btw. See sidebar.) Is it?

On the one hand the veracity of these claims is partly linked to the composer’s intent. She alone knows for sure her own creative process. She knows what’s the chicken and what’s the egg. But we’re not in court, and we can speculate, and I say the riff is the egg, not the chicken. (The chicken really did come first you know.) It is very hard to imagine this introductory riff even came along early much less first in the creative process. The riff is most easily understood as an elaborate reflection of a recurring supporting element than as a basis itself. 

I can foresee their larger argument and toward that, the most I would say is that yes, the track begins with it as an intro; then the rhythm the intro conveys is carried on in the accompanying rhythm section as the track continues and that this rhythmic figure is indeed core to the accompaniment and since it’s a somewhat uncommon rhythmic figure, it’s core to the character of much of the song. They’ve used the terms “backbone” and “unifying thread,” and rhythmically this is a defensible stretch. But is the melody of the intro a backbone or a unifying thread? No, that’s a reach. The intro figure doesn’t appear in the melody anywhere. It’s an accompanying role player. If we’re being very charitable, the shape and function of the intro’s melody is consistent with and enhances its rhythmic function. They should argue this. But the melody itself doesn’t figure throughout the song. It’s no more prominent than a counter melody in the accompaniment.

Bieber’s ostinato and White Hinterland’s are more melodically similar than rhythmically similar. So if we were to agree with the plaintiffs about the grand role that they are ascribing to this riff, all of that value is vested in the rhythmic information, not in the melodic information. That just directs our attention to the rhythm of the intro and away from the melody. It just points out how different they are. Let’s say for a moment that it IS the backbone, and the unifying thread, crucial to the record and the “Ring The Bell.”

Rhythmically it can be none of that in “Sorry.” It’s entirely dissimilar in its rhythmic function. The “Sorry” riff, rhythmically, is a much simpler riff. Indeed “Sorry” is a much simpler song. Every interesting rhythmic quality that “Ring The Bell” possesses, allegedly attributable to this riff, “Sorry” completely lacks.  “Sorry” could not even accommodate the “Ring The Bell” riff’s without completely altering its intended rhythmic function, much less have it be an important component throughout.

The public has streamed “Ring the Bell” approximately 800,000 times on various platforms since the song’s release.

This is the “access” piece of the complaint. It’s standard. If you want to prove plagiarism, you must always show that the infringer had access to the infringed work. Is 800k is a lot.

By the way, while 800k streams is impressive, that sucker is as of this writing at nearly three and a half MILLION views on youtube alone. This copyright lawsuit has probably already benefitted White Hinterland quite a lot. None of which means she’s not entitled to more. But I’m just saying. 

Here comes another similar access claim…

The April 10, 2014 edition of Rolling Stone magazine featured a print- review of Plaintiff’s album Baby. In that same edition, and only a few pages before the review of Baby, Defendant Skrillex’s album received a prominent review.

They had to have be ecstatic when they discovered this. But c’mon! Do I believe Skrillex got a copy of this Rolling Stone issue? Yes. But did he listen to all the other tracks mentioned in that same issue? Or any of them? I doubt it. They go on to make other “access” arguments, because they must. And I touch upon all of this because it’s interesting. But I digress at this point. It’s not musicology’s role to conclude that they likely did or didn’t hear “Ring The Bell” before they produced “Sorry.” Decide for yourself.

Prior to the creation of the music for “Sorry,” Skrillex, Diplo, and Blood all had access to, and upon information and belief, were familiar with Plaintiff’s “Ring the Bell” due to the widespread commercial release of “Ring the Bell,” the music press’s coverage and reviews of Plaintiff’s “Ring the Bell,” Diplo’s database of songs kept on his hard drive, Diplo’s and Plaintiff’s shared label family, and Rolling Stone magazine’s coverage of Plaintiff and Skrillex in the same issue on two separate occasions.

This is more of that same insistence that the defendants were familiar with the “Ring the Bell,” and that therefore this isn’t just a coincidental infringement. Apple Music and Spotify give everybody access to every song in the universe for 10 bucks a month. We’ve all got access to everything. Yes, Skrillex, Diplo, and Blood had access to “Ring the Bell.”  

So legally it’s a minor point, but is it probable they heard it?

  • “Ring the Bell” was released, got some press and reviews.
  • The Rolling Stone magazine thing a few paragraphs ago
  • Diplo, is one of around 50 artists or bands connected to a particular record label. This label and four others like it are all under a parent label. White Hinterland is on one of those other four. This one is kinda funny. Let’s take a napkin and… 50 artists x 4 labels x 2 records each x 10 tracks per record, we’re just spitballing here… that’s 4000 tracks with which he maybe has a “shared label family”? Who cares?! This is tedious beyond the pale. It is at best neither likely nor unlikely that Skrillex, Diplo, or Justin Bieber had heard “Ring the Bell.” But sure, they had access.

Plaintiff owns a protectable copyright interest, both in the musical composition and the sound recording, to her original and unique song “Ring the Bell,” which includes the unique and original vocal sample and riff that appears throughout “Ring the Bell.” 


The notes of the “Ring the Bell” vocal riff correspond with the tonic of the song without overstating its progression. The notes of the vocal riff foreshadow and set up the mood and feeling of the song. The vocal riff moves upward, giving the chant a certain open, uplifting freshness.


Voices are original and difficult to imitate. Plaintiff’s voice is a unique instrument. The timbre of Plaintiff’s voice is inextricably linked to her writing, especially in “Ring the Bell.”

Yes, to all three.

Plaintiff’s vocal riff in “Ring the Bell” is specific in terms of pitch, register, orchestration, and overall use, …

Yes, agreed. You’ll be sorry.

and it is the defining “hook” of the song and the seed from which the entire song grows.

No. It’s the intro, yes, but that doesn’t make it “the seed from which the song grows. As I’ve already said, this is an implausible claim.

Plaintiff positioned the signature vocal riff of “Ring the Bell” to introduce her song because she wanted to set the tone immediately and swiftly for what follows. The vocal riff grabs the listener and allows the listener to identify her song. It functions as a hook and a complement to the chorus. After the introduction, the vocal riff and sample repeat throughout “Ring the Bell.”


To write, create, produce, and record the song “Sorry,” the Defendants knowingly and unlawfully copied original, protectable elements of the musical composition of “Ring the Bell” and unlawfully sampled Plaintiff’s protectable sound recording of “Ring the Bell.” 


Defendants manipulated and/or altered Plaintiff’s sound recording by adding additional effects.


Defendants failed to secure a license to sample and exploit Plaintiff’s “Ring the Bell.”

The parts I’ve struck-through are presumably still in the complaint but they’re the parts that Skrillex specifically swatted away with this 30 second video…

Plaintiff’s protectable vocal riff is crucial to both “Ring the Bell” and “Sorry.”

Not crucial to “Ring the Bell.” It’s a bit part. It is the introduction and I’ll grant that its due significance, but it neither dictates the melody, nor likely even informs it. It matters very little to the rest of the track. Were one to make a list, this would be among the less crucial elements of the track.

The same however cannot be said of “Sorry.” It’s the intro and it’s half of the hook. It’s pretty critical. Here’s just a couple measures of the chorus.

The identical and/or striking similarity between “Sorry” and the protectable elements of “Ring the Bell” is obvious, such that an ordinary lay listener would instantly recognize the sample and similarity between the songs.

Remember, at this point, White Hinterland is under the impression that the actual recording was sampled and manipulated. So making the distinction that “lay listeners” would instantly recognize the sample and similarity is sorta funny. Sample aside, we still have similarity to deal with.

That’s the last of the interesting claims in the complaint.

Since the plaintiff’s dug a hole for themselves by falsely accusing Bieber and Skrillex of sampling “Ring the Bell,” we get to throw out a bunch of their poorly premised claims. The two intros do sound darned similar to the lay listener though. As my kid said, “They sound like the same thing.” The composition can still have been infringed upon.

Did they steal the musical idea? And is it protectable?

One theory the plaintiffs could float is that Skrillex, Diplo and Bieber  admired “Ring the Bell,” so they lifted the idea for the high pitched voice and then adding insult to injury also used the same notes that she did, essentially making a sound-alike instead of clearing the sample. That’s done all the time, by the way, often by this guy, Ken Lewis. He’s awesome, and “sample recreation” (or “sample replays”) is an interesting area.

But it certainly doesn’t appear to be anything like that. As Skrillex demonstrated, making this high pitched vocal sound was a just few clicks for him. He’s using an app called Ableton Live, but any modern music software would let you change the pitch of a music segment and add some echo. There’s nothing proprietary or even clever about any of that. Every music producer in the world is copying audio phrases from within tracks, chopping the phrases into bits, rearranging the bits to make new phrases and using effects way more interestingly than this.

Here’s Calvin Harris’s and Rihanna’s huge hit, “This is What You Came For.” Hugely popular hit song with the hook that goes, “But she’s looking at you ou ou ou, you ou ou ou.”

Rihanna might never have sung anything like that in the studio. That line was put together in a computer. Every “ou” is the same recorded snippet. This is what’s in style now. We’ve moved beyond using computers-to-fix-imperfetions. “This I What You Came For” is made extra choppy and artificial sounding on purpose!

What the heck is Kiiara supposed to be singing in “Gold?” This is taking it a little far, but really, it’s just very common.

Most likely Skrillex was listening to the a cappella demo, looking around for bits and pieces of a female vocal that he could put to use in his production. She provided an interstitial non-lyrical phrase that she sang in the chorus after “Is it to late to say ‘Sorry?'”  Again I would assert my guess that she probably meant to outline and imply the intended harmony (it does that) while adding a little vocal ornament to build toward the answering phrase, “Cuz i’m missing more than just your body.”

In Skrillex’s Twitter takedown, he showed us that he pitched her voice down four semitones and then up twelve semitones. Why not just pitch it up eight in the first place? Because it’s a short version of the story. She sang her demo in G major. But Justin’s track is in Eb. So the first thing Skrillex probably did is pitch down her whole demo by four semitones to get it all into Eb major. Then he went looking for things to chop to bits, found this appealing snippet and recalled, “Justin loved the production technique I did on ‘Where R U now?’ I could do something kinda similar here.”  So he pitched up her vocal and turned up the echo and used it as a musical element in Justin’s track.

Let’s sidestep now, explain what that “Where R U Now” effect was, to make the relevant fundamental argument that nothing about White Hinterland’s echoey high pitched vocal treatment is protectable in the first place.

Justin reportedly couldn’t believe it when his voice got turned into a shakuhachi part by Skrillex for “Where R U Now?” It was a huge hit  song, and the NY Times did a “making of” video  that got shared around the music production world immediately. The part sounds like this:

The big philosophical argument would be that if Skrillex can turn Justin’s voice into a japanese wind instrument, he could probably have transformed him into an echoey high pitched female singer. Suppose he had, and similarly finds himself sued by White Hinterland because it sounds too much like her. That would be silly. It’s his own voice with all it’s unique characteristics. Suppose the intro to “Ring the Bell” was not her voice at all, but a flute playing those same four notes – high pitched, echoey, playing that same musical figure. And then suppose “Sorry’s” intro was a flute as well. Could she then say, “You copied my use of a flute!” Again, silly. It’s just a sound. Bieber would probably say, “I got my own live flute player here, and all flute tones are as unique as snowflakes.” Flute, shakuhachi, male voice, female voice, in an echo chamber or not — these are orchestration decisions and not protectable. In other words, Bieber is entitled to use any female voice not named “White Hinterland” and turn up the echo all he wants. White Hinterland can protect her own recording (irrelevant here because it wasn’t sampled) but she can’t conflate this with defending her composition. These are different concepts. They didn’t sample her record. And she doesn’t own echoey female vocal sounds.

That out of the way, all we have left is to look at the notes, on paper, and see if Bieber is stealing her song.

Going back to the plaintiff’s words…

The four notes of the sampled female vocal riff of both “Ring the Bell” and the infringing “Sorry” are Bb-C-Eb-F. The four pitches are of equal duration and are sung in a rapid succession by Plaintiff’s voice. The temporal spacing of the notes of the female vocal riff in both “Ring the Bell” and the infringing “Sorry” are the same. In both “Ring the Bell” and the infringing “Sorry,” these pitches function as a 5-6-1-2 pitch sequence in the key of Eb.

Essentially yes. They’re correct about the notes and their melodic function.

I have to keep reminding my readers to forget that although it’s a similar female vocal sound, that’s irrelevant here. We’re just looking at the notes, the pitches, Bb-C-Eb-F,  an allegedly plagiarized musical phrase that would be no less plagiarized were it played on a  kazoo.

Musical phrases have qualities —  melody, rhythm and harmonic function. Triers of plagiarism cases assess similarities in these qualities. And then separately decide if the piece of material enjoys copyright protection under the law in the first place. Or conversely, they often find that it’s a common musical device, too broadly applicable to be the unique property of White Hinterland or anybody else?

First, the melody itself. A post I read on Pitchfork quotes another musicologist as saying:

“The opening phrase is similar, but Justin Bieber’s ends on a different note every time,” says Jeff Peretz, professor of music theory at NYU’s Clive Davis Institute of Recorded Music. “They are not the same melody. They are very similar, they have similar notes and a similar arc, but they are fundamentally not the exact same melody.”

Perhaps he was misquoted or misinterpreted, but the notes in question aren’t “similar,” they’re exactly the four notes the plaintiff’s say they are. And the opening phrase in “Sorry” ends on the same note as Ring The Bell’s every time. That note is “F.”

The differences lie elsewhere.

Skrillex apparently clipped his whole phrase verbatim from the chorus of the a cappella demo and decided it would work as an intro and a hook. The snippet is indeed comprised of the four notes the plaintiff’s say, Bb-C-Eb-F. And “Ring the Bell” uses it’s own sampled phrase, those same four notes, in that order, over and over. But Skrillex’s sample part from the “Sorry” demo is not a four note phrase. It’s a five note phrase, every time! It’s Bb-C-Eb-F and then another ‘F,’ — four sixteenth notes followed by a quarter note.

This is no minor detail.

SIDEBAR: Very quick rhythm lesson now. Music notation is mathematical. Most often music is in 4/4 time. 4/4 time is so prevalent in fact that it’s actually referred to as “common” time. If you find yourself tapping your foot and counting along with a song and thinking “1-2-3-4  1-2-3-4  1-2-3-4…,” that’s 4/4 time. Music is divided into “measures” – the vertical lines in sheet music. The numberator in 4/4 time means we’ve broken each measure into 4 beats and the denominator means each beat is represented by a quarter-note. Four quarters thus make a whole measure. It all kinda adds up.

The first four notes of “Sorry,” four sixteenth notes, begin on beat two (a “weak” beat as we’ll explain in a sec) leading up to the fifth note on the “strong” beat three, then the sample immediately repeats on the fourth leading to the strongest beat, beat one of the second measure. The real musical purpose of the phrase is to forecast and lead up to the last and most important note. The phrase has velocity and momentum. It begins on a weak beat and its momentum drives to a resolution as it lands on a strong beat. Let me describe what we mean by weak and strong beats and explain how they are like velocity and momentum.

SIDEBAR: Music has energy, momentum, velocity, direction. The manipulation of these is largely what gives music its purpose and intent.

So consider… the downbeats are the stronger beats and the upbeats are the weaker less emphasized ones. If I ask you to tap your foot as you count 1-2-3-4 you’ll tap your foot four times I expect, unless you’re a drummer. Then you’ll tap your foot on 1 and 3, the strong beats. So now you’re a drummer. Think like one. Bob your head, as you count 1-2-3-4, bob your head down on 1, up on 2, down on 3, up on four. Repeat. Now you understand down beats and up beats.

Now while you’re bobbing your head, imagine beats going by twice as fast, and four times as fast. You’re imagining eight notes and sixteenth notes. You still feel stronger downs and weaker ups. That’s the nature of music. The downs are emphasized, the ups have to lead to downs, like with gravity. This gives music direction, and therefore momentum.

Back to our example. “Sorry’s” phrase is four sixteenths, rhythmically down up down up, followed by a fifth note, the target note, down. Consider how unsatisfying the phrase would be if you took the last note away. There was momentum, and it was arrested.

The notes themselves matter too. Notes have meaning and function. Most analogous to rhythm’s “downbeat and upbeat” are notes that are “stable and unstable.”  Some notes are more stable — notes you land on contentedly. Some are unstable, notes that feel as though teetering and beckon you to move elsewhere to more stable one.

In the world of “Do, a deer, a female deer,” the most stable notes are Do, Mi, and Sol. The least stable are Re, Fa and Ti. If I ask you to sing Do, Re, Mi, you’ll land contentedly. Likewise, up to Sol. If I ask you to sing Do, Re, and stop there, you’ll feel interrupted. And if I ask you to sing all the way to Ti and stop there, you’ll probably be so frustrated you’ll start to shake a little.

I’ll illustrate, playing a scale on a piano and denying you the last note that you expect.

The phrase ended on a weak beat and an unstable note, so it sounds very incomplete.

The entire musical thought is not just those four or five notes. The second repetition brings us into the second measure, and then an “answering” melody on a synthesizer completes the idea.  I’ll play it on a piano for you with a hi hat tapping out the time for context. It’s this:

In the accompaniment the intro employs the same chords used throughout the song, both in the chorus and the verses. The chord progression is IV-vi-V. In the Key of Eb Major, those three chords are Ab Major, C minor, and Bb Major.  Bb Major is defined as the notes Bb-D-F sounded together. And so, as the “Sorry”phrase plays it’s four sixteenth notes that lead up to the “F,” so too does the accompaniment lead to the Bb major chord with with that “F” will be consonant. (As one of the three pillars of the Bb Major chord, the “F” in the melody will sound harmonious.)

Let’s bear this in mind while we look at the very different usage from “Ring The Bell.”

First here’s “Ring The Bell’s” Intro.

You hear the four note sample repeated a few times, but not consistently placed. It’s hard to know exactly when it’s going to repeat. Try to hum along. It’s pretty futile. She purposely obscured the rhythm for the first couple of measures, an interesting creative decision. When other instruments enter, she extends the use of the sample to the form it will take throughout the song. Just as in “Sorry,” where the real phrase wasn’t the five notes, but ten.

The REAL phrase isn’t four notes, but eleven. Four notes, followed by the same four notes, followed by the first three. Often throughout the song it’s a longer phrase where the last three notes appear only every other measure.

It can be tricky to discern this rhythmic function. One way I thought I might clarify it was to add a drum part of my own design that emphasizes the rhythmic role of the vocals.

Then I’ll show you how this same rhythmic idea is carried throughout the track. Here, listen for just the snare drum, and try to ignore her vocal.

So while there are four notes in sequence in common, the phrases’ melodic rhythms are completely different.
Would you like to see how many times the two line up on paper?
Out of the eleven notes in the Ring The Bell figure, you could argue three are in sync. The three I’ve highlighted. Sixteens landing on beat four of the first measure. If I were more adversarial, I would show the just as common “Ring the Bell” circumstance in the song where the last three notes only occur in the second measure. Then there would be ZERO common notes.
That notation could be clearer. I’ll look to replace it with one that lines up the beats more obviously. It will do for now.
The key is this… When you look at the whole phrases, their melodic rhythms, the harmonies that support them and the function of the notes in the context of those harmonies, these phrases are very different.
We have spent a lot of time analyzing the similarities and dissimilarities. But really, once the wrongful accusation of sampling went out the window, you were left with four notes. Four notes isn’t much at all. And these four notes are not protectable. To illustrate, I will now make up a tune using the same four notes in the same order. And then at the very end I’ll overlay the vocal sample from “Ring The Bell” to remind you what the four notes sound like in her voice.

How long did it take me to write that song? That isn’t a song. That’s just an idea. And it was conceived in its entirety in less time than it took to play it, 30 seconds. I thought to myself, “I’m going to change the chords to this other “stock” thing, play a simple baseline and add drums to make it sound like something, and as a composer I already know the figure I’m trying to employ is going to work nicely throughout. That’s how unprotectable building blocks work.

 Three and half million views for Ring The Bell on youtube.

Thinking Out Loud v. Let’s Get It On | Analysis

Any day is a good day to sue Ed Sheeran.

This is his second time being sued this summer alone. Only a few weeks ago I wrote here that I thought Ed Sheeran DID steal his hit “Photograph,” (innocently I think) and he’ll almost certainly gonna be paying the writers of Matt Cardle’s hit “Amazing” a lot of money.

This time though Sheeran didn’t do anything wrong and I’ll be disappointed if I hear of a settlement. This complaint says Sheeran plagiarized Marvin Gaye’s 1973 #1 hit song, “Let’s Get It On,” to write his #2 hit song, “Thinking Out Loud,” the “Song of the Year” at the 2016 Grammy Awards.

This action comes from the family and heirs of Gaye’s co-writer of “Let’s Get It On,” Ed Townsend. and not Marvin Gaye’s heirs and who famously last year won a $7.4M judgement against Robin Thicke and Pharell for jacking mega-hit, “Blurred Lines,” from Gaye’s “Got To Give It Up.”

Without further ado, here are the two tracks.

It’s not as though anyone is stunned to hear of a lawsuit. The  similarity was noticed right away when “Thinking” was released. Someone even created this mashup showing very nicely that Let’s Get It On” and “Thinking Out Loud” can be played right over top of one another.

And if that’s not bad enough, how about this next video? At around 4 min and 30 seconds Sheeran himself breaks into a chorus of “Let’s Get It On” over his Thinking Out Loud chords.

Why would he invite trouble? Is he just that smug? Of course not.

He’s just being funny; an innocent musical joke — Sheeran is justifiably comfortable that despite the obvious similarities, he didn’t steal anything that Gaye and Townsend really own in “Let’s Get It On.” Not everything in music is protected by copyright. I’ll explain.

What’s the essential similarity?

It’s a series of four chords, that simply repeats over and over throughout both songs.  I’ll show you what that specific thing by itself sounds like in a moment but first, some basic terminology.

“Chords” are groups of three or four notes sounded together. When notes are sounded together we call the distance between the notes, “intervals,” and the sound they make together is “harmony.” A series of chords is called a “chord progression.” These two songs have the same “chord progression” running nearly throughout.

Their shared chord progression is “two measures long in 4/4 time.” We divide music into little time packets called “measures.” It’s what enables us to count beats as “one and two and three and four” and then cycle back to “one” instead of having to count to a thousand. The 4/4 time part means that each measure is four beats long (most common by far) and this progression fills two measures, so eight beats in total. It all takes place in about 6 seconds. And now finally you get to hear it.

Go back and listen to either of the two tracks; just the first ten seconds or so of each. What do we hear in both? We have groups of simultaneous notes making harmonies, played in a certain rhythm. We hear some tonal instruments that play notes along with some non-tonal percussion instruments. These combine to make what we call a “groove.” It’s kinda like the engine of the song, propelling the music. The groove is what you dance or just nod your head to. And then we also have Marvin Gaye and Ed Sheeran singing words and melodies along with that groove.

But ignore the vocal melody and lyrics for now, and let’s just take a good look at this groove and the harmony and rhythm that make it musical. Then we’ll really understand the similarity on a technical level.

Just the Chords Themselves

The eight beats use four different chords for about two beats each, and this repeats over and over. (Actually Sheehan’s first four bars has an extra chord at the very very end. Try to ignore that as an ornament, a guitar embellishment. It’s pretty irrelevant.)

I’m going to refer to these four chords in order as “one, three, four and five.” And I’ll represent them as roman numerals, “I, iii, IV, and V.” The “iii” is lower case because it’s a minor chord whereas the others are major chords. These numbers by the way are analogous to “Do, Mi, Fa and Sol.” the first, second, fourth and fifth notes of a major scale (where “Re” is notably missing, and would’ve been two, or “ii.” Get it?

I – iii – IV – V is a very familiar sound.

Here’s just the four chords, I-iii-IV-V, two beats each, played by me on a piano.

The Rhythm Component

Now let’s look at the rhythm. I’ll add a rhythm section of bass and drums to the piano part. The bass plays right along with the piano on the same beats. And drums are provided by music software playing a  typical R&B (Rhythm and Blues) preset drum part.

Okay, now we’ve got a bit of a groove going. This is close, but not exactly the same rhythm used in the two tracks. Remember I said the four chords are “about two beats each?” In the example above, I played them “straight,” meaning EXACTLY two beats each.

In both “Let’s Get It On” and “Thinking Out Loud,” the four chords actually aren’t so uniform in length. They actually land on beat one, and on the “and of two.” If you count in your head, “ONE and TWO and THREE and FOUR and” as the music goes by, the chords will land on the that first beat, “one,” and then in between two and three, when we say “AND.” Perhaps you’ve heard of downbeats and upbeats? The full numbers are the downbeats and the “and’s” are upbeats. Usually, downbeats are the stronger and more emphasized.  When “upbeats” are emphasized to some degree, we call this “syncopation.” In other words the second and last chord of our four are going to be played a little earlier.

We’ll change them one at a time, beginning with that last chord, the five (V) chord, so you can hear the change more easily. You’ll hear three chords the same as before, but then the fourth one will arrive a little earlier than in the last example.

And now we’ll move the second chord (iii) as well. That sounds like this…

This might be a good time to ask you, “Does this sound like a unique protectable idea? Or does it sound like a thousand other songs you’ve heard in your lifetime?

That’s the way the progression actually goes. We can sing most of both “Let’s Get It On” and “Thinking Out Loud” over just that 6 seconds of accompaniment repeating over and over.

At this point, you should pat yourself on the back. You have essentially just made it through one day of a collegiate “Music Theory 101” class, a course in which you’d spend the whole semester learning the essential building blocks of music, the devices, rules, conventions, and systems that are essential to the whole aesthetic of western music, developed from before the time of Bach and still evolving.

Nobody owns nor copyrights these basic building blocks any more than an architect like Frank Gehry would ever copyright marble slabs, or even sculpted sheet metal, although he’s certainly particularly known for that. We understand that architecture will often have common beginnings, like a foundation, and will involve common materials that are aesthetically pleasing and functional. Music is similar. The intellectual property begins on a level beyond those common structures and basic materials that hold together songs, and buildings.

To illustrate, let’s see what else we can do with this same sort of musical building block. If you listened to that mashup above all the way through, you might see this one coming.

Next I’ll just slow the four chords down a little and we get…

Transpose down a key, but still the same I-iii-IV-V and we get…

Slowing the tempo further, but still using the same chords in the same proportions, and then we have…

This is not a slam dunk argument, merely a good one. None of these are on the nose copies of the Let’s Get It On chord sequence. Sheeran’s song is a more precise match. But what I am saying is that the basic material is very rudimentary building block type material. You can see that this same chord progression is the basis for lots of other music. And I could probably do this all day. I’ll just sit and think of a few more…

  1. I Won’t Last A Day Without You, Carpenters
  2. Turn Around. (Where are you going my little one?), I don’t know who wrote it. I remember learning this song on guitar when I was six.
  3. Captain Candy, Anthony Newley. You don’t know this one. It played in my house growing up all the time. My dad had a bunch of Anthony Newley albums. Newley co-wrote all the music from Willy Wonka — “The Candy Man” and such. I might be the only person alive who knows this Captain Candy song. But it’s a real thing and it’s these four chords.
  4. Perhaps Love, John Denver, that duet he did with Placido Domingo. It was a top 20 hit 30 years ago.

All written over our I – iii – IV – V chord progression.

They don’t repeat the same four chords 100x in a row the way “Let’s” and “Thinking” do but they used the progression prominently, more than enough to prove the point. And that point is that you can’t copyright the use of that common progression once, twice, nor 75 times in a row. It isn’t in itself a unique nor substantial enough musical work to be owned by anyone. It’s public domain. It’s no more than a framework.

There are only 12 notes.

We sometimes hear it argued, usually in defense of not-very-unique melodies, that there are only 12 notes. That’s true. But the possibilities for unique chord progressions are far more confining. Sure, there are more chords than notes, there are hundreds of chords, but only a tiny fraction of them are really available to the pop music composer at any given time. I’m not out on a limb if I say there are no more than six chords readily available to most pop composers most of the time. Both “Thinking” and “Let’s” are covered by just six different chords each.

The complaint tries to get around this in part by saying that Thinking Out Loud takes the heard of Let’s Get It On. They’re “begging the question” in at least a couple of ways. They presume firstly that the groove is somehow the definitive “heart” of “Let’s Get It On.” And if allowed to make this giant leap, they’ve gone a long way toward implying that the rest of both “Let’s” and “Thinking” are somewhat less important. They’d like you to follow the logic that the “heart” isn’t merely a component, but that it significantly steered the creation of  both songs, leading to the argument that “Thinking Out Loud” wouldn’t and couldn’t have been written at all if not for “Let’s.”

Smart of them. Copyright infringement is binary, you either infringe or you don’t. But the larger “Let’s Get It On” looms in the success of “Thinking Out Loud,” the greater the share of Sheeran’s profits they would be awarded.

But none of this is reasonable. Again…

  • brief generic musical thought
  • not unique to “Let’s Get It On”
  • present in lots of other songs

So, first, I’m saying they don’t own it.

But that’s not all by a long shot.

Second, if these tunes have a “heart”, that groove ain’t it. For comparison, let’s consider the supposedly less “hearty” features of these two songs.

The melodies of “Thinking Out Loud” are craftily composed and serve the lyric deftly. Each musical thought leads logically to the next, creating an ebb and flow, and directing the storytelling and emotional arcs of the song. The lyric and melody comprise a substantial and competent work that could likely be supported by several other chord progressions in the accompaniment, and still have been hit.

Here’s a recording of both of the two verses from “Thinking Out Loud” played over top of each other simultaneously. What I want you to notice is that I can layer the two performances, play them back together, and it sounds pretty good. I can do this because the shape is the essentially the same from one verse to the next. This melody has integrity. I’m not talking about moral integrity but structural integrity. The two verses aren’t 100% identical, and any performer of the song might make little modifications, improvisations, or ornamentations around this melody just to add interest, make it her own, Tony Bennett the hell out of it if desired, but the melody would maintain its musical meaning, its essential arc. It has substance.

And here we find the same integrity in the choruses. This is a stack of all three choruses from “Thinking Out Loud” with its “We found love right where we are” tag.

Again we find a deliberate, complete and very substantial melodic work. “Thinking Out Loud” is neither dominated nor significantly defined by the groove it shares with “Let’s Get It On.” In fact, I could install a different groove, an even more common one, and the song would remain intact and be hardly affected. The accompaniment is not its “heart.” The track’s value is mostly held in the wealth of material in these examples — catchy, clever, appealing, singable by a six year old after a couple of hearings, and completely composed by Ed Sheehan.

Of supreme importance, “Thinking Out Loud’s” melody and lyric contains nothing of consequence in common with “Let’s Get It On.” So it’s weird to be arguing substantial musical similarity at all. In prior musicology analysis I’ve talked about “how many notes in a row are common to both tunes,” and that sort of thing. Common notes in melodies are usually the primary cause for a complaint. Unbelievably here the plaintiffs might never even mention melody or notes. Imagine, they are going to argue pop song infringement while perhaps avoiding any discussion of melodies and lyrics since both are, if anything, exceptionally unalike.

I do predict they’ll take up time with a few pointless arguments. Musicologists get paid to notice things like, “both songs leave a few beats of space between phrases in the lyric.” Or “both songs have the same ‘Verse Verse Chorus Verse Bridge Chorus’ structure.” Never mind that half the songs in the history of pop music do both of those as well. They’ve got to make a showing with a few observations that even if not significant, are at least true.

Does Let’s Get It On have a better heart?

‘Let’s Get It On” is an iconic track that reached #1 on the Billboard Top 100. On paper it’s mostly a framework. It has a structure, but it’s a loose one. And it has melodies that have become familiar over time because it was a monster hit, but its melodies are rather meandering and fluid. Most of us can precisely sing that first line, “I’ve been really trying, Baby…” and we can join the chorus at “Let’s get in on,” and only if you know and love the song, you might add “We’re all sensitive people…”  But much of it is an ethereal, stylized and improvisational sounding performance. These are among its charms but they happen to have nothing in common with “Thinking.”

“Let’s Get It On,” wasn’t defined by that groove anymore than “Thinking Out Loud” is. The groove fits the track and the track became iconic, but it’s not the driving force, not even close.

Ask yourself where Let’s Get It On and its groove would be without that warbly funk guitar throughout? Does anybody really think the studio musicians were in this session thinking, “Wow, I’ve never heard this awesome groove before; this is amazing.” “Who even needs Marvin singing about sex? We’re done here. Just put this groove out.” No, it needed Marvin to sing about sex. It was very little without that. That’s probably the “heart” of that tune.

Am I saying “Thinking Out Loud” is a novel, unique track, unlike anything you’ve heard before? Nah. It’s a conventional pop tune that employs lots of pleasing and clever but not unique “devices”  including it’s these chords and rhythms that Let’s Get It On shares with it. The songs are copyrightable, but not every component within the songs can be. Building blocks like we’re describing are the musical and lyrical stuff from which “hooks” are made and from which we get hit records. It’s arguably what we look for most in pop music, the foundational elements, then with a bit of a unique twist.

This is not what copyright seeks to do. This is not what it seeks to protect. Unless we want to kill popular music altogether, we should be throwing cases like this out.