No Expectations 022: Thinking Out Loud
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No Expectations 022: Thinking Out Loud
A plagiarism trial worth your attention. Plus, a sick new album from Noah Kesey.
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Solidarity with the WGA.
It’s time to root for Ed Sheeran. No, really.
Pop crooner Ed Sheeran is currently on trial in Manhattan’s federal court and he’s not taking the stand for the crimes of soundtracking every CVS errand or for questionable tattoos. Instead, it’s because the English songwriter is accused of stealing from Marvin Gaye’s 1973 masterpiece “Let’s Get It On” on his 2014 hit single “Thinking Out Loud.” The case against Sheeran comes from the wife and descendants of Gaye’s co-writer, Ed Townsend, who allege, “The defendants copied the heart of ‘Let’s’ and repeated it continuously throughout ‘Thinking.’ The melodic, harmonic, and rhythmic compositions in ‘Thinking’ are not the product of independent creation.” Say what you will about Sheeran (and Lord knows I’ve said some mean things about the guy’s tunes) but he shouldn’t be found liable here for copyright infringement.
You can listen to the two side-by-side at the NYTimes but keep in mind the actual recordings aren’t involved in the lawsuit, ”just the underlying musical composition of the two songs — their melodies, chords and lyrics” as the Times notes. Because “Let’s Get It On” came out before 1978, only the contents of the sheet music, also called the “deposit copy,” submitted to the Copyright Office are protected. In this song’s deposit copy, only the chords, lyrics, and vocal melody were included which means the guitar riff and bassline are not under copyright. This is a technical way of explaining that at the center of this lawsuit is the song’s chord progression, which is similar but not identical to Sheeran’s. “It is such a basic chord progression that it is taught in elementary guitar method books,” Sheeran’s attorneys wrote. “According to a monopoly over the use of a common chord progression to any author would undermine the central aim of copyright law … and unduly chill future expression.”
It’s tough to fully wrap your head around the heart of the plaintiff’s argument, that chord progressions themselves can be copyrighted and not elemental building blocks free to use for any songwriter. While the recordings aren’t pertinent to the case, no matter how many times I play both songs the more I don’t hear it. The compositions are similar, for sure, but only in the way that much of four-chord pop music draws from the same well. This particular copyright case feels much more tenuous than the also controversial “Got to Give It Up” / “Blurred Lines” trial involving the Marvin Gaye estate and Robin Thicke. The jury in that trial unanimously ruled against Thicke, despite his song having an entirely different song structure and sharing no musical phrases with the Gaye classic. The two songs did share a groove and a feel, which is nebulous enough that the ruling sent shockwaves to the songwriting world.
If the jury rules against Sheeran, like the “Blurred Lines” case, it’s not going to change the law but it will further open up the dam and incentivize stakeholders to aggressively pursue infringement claims. While famous pop stars like Sheeran are easy targets, it’s not unlikely that one of these cases from a litigious estate or stakeholder will come for an artist with fewer financial resources. Let’s say a band on an independent label releases a critically acclaimed album with a song that arguably borrows a melody from The Kinks’ “Waterloo Sunset.” A lawsuit would effectively bankrupt this band even if the similarities were a total coincidence. While it’s important to stay nuanced regarding this Sheeran case—it won’t move the needle much except for emboldening more similar lawsuits—a world where a jury can claim chord progressions are copyrightable is a messy and arbitrary one.
While it didn’t set a legal precedent, the “Blurred Lines” case did impact the world copyright cases and professional songwriting. A 2019 New York Times piece details “the chilling effect” the jury’s decision had on these worlds, with lawyers finding that more spurious cases are going further and songwriters self-edited for fear of litigation. It certainly emboldened Townsend’s estate to go after Sheeran. In the Washington Post, musician Elizabeth Nelson has a lucid and thoughtful take on the whole thing. “The case presented by the Townsend estate is nakedly cynical and designed to play on fundamental and understandable misapprehensions about how songs are created," she writes. "Much like math or writing, music is limitless in its possibilities but paradoxically required to repeat itself."
This week, the Sheeran case got a ton of attention because the artist said if he lost the case, he might quit music. “If that happens, I'm done, I'm stopping,' Sheeran reportedly said. “I find it really insulting to devote my whole life to being a performer and a songwriter and have someone diminish it.” That quote unsurprisingly resulted in a lot of myopic dodos on Twitter saying, “haha please quit music” but lobbing an impulsive insult at a pop star shouldn’t obscure the importance behind his case. Chord progressions are an elemental part of songwriting and should be universally available to anyone wanting to make their own art. You do, under this circumstance, gotta hand it to Ed Sheeran.
Fall Out Boy is selling vinyl containing the band’s actual tears
They’re calling it “Crynyl” and claim it to be “the ultimate in emotional fidelity.” Give me a break. This annoying stunt marketing panders to the “so sad today”-types who conflate a feeling for a personality. I don’t know why this bothers me so much—I don’t even listen to the band—but it’s so corny. Only 50 copies were made and it’s already long sold out so obviously this doesn’t really matter. It just serves as a novelty item for the band’s most diehard fans to shell out $99.99 for. Maybe it’s my distaste for gimmicks but it doesn’t sit right with me that mental health and feeling sad have become marketing tools. It’s not just Fall Out Boy doing it. Feels gross!
What I listened to:
Noah Kesey, Guitar Music
Vermont’s Noah Kesey plays guitar in Greg Freeman’s and is an absolute shredder but his solo music is excellent and inviting off-kilter rock. He’s the sort of artist who freely follows their own whims, valuing experiments and tying new things out over making everything sound totally cohesive. His last effort Songs 2019: Pangea, which came out last year, veered from pitch-perfect outsider pop to driving indie rock and then its best song, “Radar,” is a house-inflected glitchy pop song that wouldn’t feel out of place at an electronic music festival (in a good way!). Kesey describes his latest collection Guitar Music, which he surprise-released in its entirety on Bandcamp, as “an attempt largely at songwriting, various experiments with texture, lyrics, joy, and dissonance inspired mostly by my close friends.” It’s not as gleefully all-over-the-place as his last effort, but it’s just as thrilling. Even though it’s a little more unified as a whole, it’s still hard to classify. You get bits of shoegaze, Primal Scream-esque melodies, and even trumpet on opener “Happy Son” which feels like a throwback to aughts big indie. Big fan of the rollicking “Kiss My Phone” and the playful “Peach.” In a DM, he called it “wook shoegaze,” which made me chuckle.
Kesey dropped this album before he even announced it and said he might take it down—so feel free to buy it on Bandcamp before you can’t hear it anymore.
What I watched:
The Wire (Season 1)
It’s always a good time to rewatch The Wire. The show’s a classic for a reason and every time it’s better than you remember. I don’t have anything interesting to say about a show that’s been written about and raved about countless times but if you haven’t seen it yet, now is a good time to start.
What I read:
The Other Side of the River by Alex Kotlowitz
St. Joseph and Benton Harbor are two neighboring cities divided by the St. Joseph River in southwest Michigan. The former is predominantly white and its median citizen is three times more well-off than someone from Benton Harbor. In The Other Side of the River, journalist Alex Kotlowitz examines the history of these two towns and their racial dynamics through the 1991 death of a Black teenager, Eric McGinnis, from Benton Harbor whose body was found in the river in St. Joseph. It’s a heartbreaking account of a tragic death that served as a racial flashpoint for these two towns. The case was reopened in 2021, over twenty years after this book was released.
Never a City So Real: A Walk in Chicago by Alex Kotlowitz
This book feels like a perfect companion piece to Nelson Algren’s Chicago: A City on the Make. It’s full of short vignettes of local outsiders, shit-stirrers, dive bar regulars, and activists: a small but satisfying portrait of a city always in motion. There’s a certain sensibility that’s hard to describe about the people who live here but Kotlowitz does a good and reverent job capturing it.
The Weekly No Expectations Chicago Show Calendar
Thursday, May 4: Built to Spill, Prism Bitch, Itchy Kitty at Thalia Hall. Sold out.
Thursday, May 4: OK Cool, Scarlet Demore, Background Character at Schubas. Tickets.
Friday, May 5: Dougie Poole, Tobacco City at Empty Bottle. Tickets.
Friday, May 5: Meat Wave, Melkbelly, Kal Marks at Sleeping Village. Sold out.
Wednesday, May 10: Quinnie, Half Gringa at Schubas. Tickets.
No Expectations 022: Thinking Out Loud
Quinnie in No Expectations
Good overview, even reading it after the verdict was useful. I go with my gut on these things and couldn't see how Sheeran could lose the case. With Blurred Lines, however...every time that damned song comes on I think it's Got To Give It Up at first. So that case went the right way! Will check out Noah Kesey.