Someone shared with me Sheeran’s interview on Howard Stern. Mr. Stern asked Mr. Sheeran to play through some examples of (he put it well) “how similar things can be.” And Sheeran obliged.
This does show, as Howard said, “how similar things can be.” But it shows something else too.
Forensic musicologists are asked to analyze the matters of originality and similarity extrinsically and objectively. Juries though have the ultimate say, in the U.S. at least, and consider a more subjective question about whether an ordinary listener would find two works similar in an overall sense.
Most listeners would listen to Sheeran run through half a dozen of these and think, “They’re all the same song!” (And there are extrinsic explanations that explain and rationalize those intrinsic observations. But me being me (read as: “a difficult sort”) as soon as I listened to it, I said to my friend, “That’s fine, but it presents issues too.”
And then I rattled off something like:
“Have I Told You Lately” goes like that. But it’s from the 80’s.
“You’re Still The One” goes like that. But it’s from the 90’s.
“People Get Ready,” is older, but doesn’t really go like that.
“Just Like A Woman” is older too, but doesn’t go like that.
By the time this went to trial, the plaintiff’s claim had been reduced to “same chords in the same rhythm.” And that’s not negated by these examples.
“Georgy Girl” checked the necessary boxes: older, same chords, same rhythm. Pretty water-tight.
It’s not that these don’t illustrate the broader issue. They do. I thought of a list of these kinds of songs off the top of my head on the first day. (Have I Told You” was on it.) And as the trial neared, I posted a mock-up of about twenty-five similarly relevant but not quite on-the-nose examples just for fun. I won’t go find it right this second, but it’s out there. And they were valid overall just as Sheeran’s point is. Most people wouldn’t hear that these songs aren’t on-the-nose, and in the end, the way the ordinary listener perceives similarity is paramount.
But if Sheeran was asked, “Yes or No please, Mr. Sheeran, do those songs you just played contain the same chords in the same rhythm as yours and ours?” The answer would be, “No.”
I wonder how that would’ve played.
