Thinking Out Loud about Independent Creation

“Sometimes, the only way to defend a song is to play it”(Thelonius Monk).

In 2023, Ed Sheeran did exactly that. Standing in a New York courtroom, guitar in hand, he performed Thinking Out Loud to a jury.  It was not a publicity stunt.  It was evidence.

Sheeran had been accused of copying Marvin Gaye’s Let’s Get It On.  As in many music cases, the claim centred on alleged similarities in chord progression, rhythm, and overall feel.  But similarity is only part of the story.  The law requires proof of copying, and copying requires more than resemblance - it requires a causal connection between the two works.

In this case, the jury ultimately sided with Sheeran. They accepted that he had independently created his song, notwithstanding its similarities to the earlier work.

What makes this case particularly interesting is not justthe outcome, but how it was achieved.

Sheeran’s defence relied on demonstrating his creative process: how the song was written, how influences were absorbed, and how the final composition emerged from that process.  His live performance was part of that narrative - a way of showing how common musical building blocks can be arranged without copying.

Even so, the case illustrates the fragility of traditional evidence. Much of it was reconstructed, explained, and contextualised after the fact.  The court (and the jury) had to piece together a story from testimony, partial records, and expert analysis.

Now imagine a different scenario.

In a copyright court in an alternative universe, the artist, Etched Sheeran, was able to produce a complete, time‑stamped record of the song’s development: every draft, every iteration, every discarded idea.  

He could do this because he used Etched to capturehis creative process in real time, laying down a continuous, verifiable,time-stamped record of independent creation.

In this alternative universe, Sheeran’s defence becomes much more straightforward.  Instead of asking the jury to believe that the song was independently created, he could show it.  The evidential burden did not disappear, but it became far easier to meet.

This is not merely a hypothetical advantage.  As copyright law continues to grapple with AI‑assisted creation, the line between influence, coincidence and copying will become evermore contested.  Works may emerge through processes that are rapid, iterative and partially opaque.  In that environment, the ability to demonstrate a clear, human‑driven creative pathway may be decisive.

Sheeran’s case shows that independent creation can prevail.But it also highlights how much effort - and risk - is involved in proving itunder current evidential conditions.

Looking forward, the question is not just whether independent creation occurred, but whether it can be documented convincingly enough to withstand scrutiny.

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