Let's Get It On
The yearslong legal battle over Ed Sheeran‘s “Thinking Out Loud” has officially drawn to a close. The heirs of Ed Townsend, co-writer on Marvin Gaye‘s “Let’s Get It On”, who sued Sheeran in 2016 for allegedly infringing the classic song in his smash 2014 single, have officially dropped their appeal in the long-running case, according […]
Ed Sheeran is on a legal winning streak.
Less than two weeks after the star singer won a blockbuster trial over whether his “Thinking Out Loud” infringed Marvin Gaye’s “Let’s Get It On,” a federal judge has dismissed a second, closely-related copyright case accusing him of copying the same iconic song.
U.S. District Judge Louis Stanton had ruled last fall that Sheeran would need to face a jury trial in the second case, just like he did in last month’s showdown in Manhattan federal court. But on Tuesday (May 16), the judge issued a surprise decision reversing himself and dismissing the case without a trial.
The reason? The judge said he could rule himself, without the help of a jury, that the combination of simple elements that Sheeran allegedly stole (a chord progression combined with a harmonic rhythm) was not unique enough to be covered by copyright law in the first place.
“It is an unassailable reality that the chord progression and harmonic rhythm in ‘Let’s Get It On’ are so commonplace, in isolation and in combination, that to protect their combination would give ‘Let’s Get It On’ an impermissible monopoly over a basic musical building block,” Judge Stanton wrote, echoing the arguments that Sheeran’s attorneys made throughout last month’s trial.
Sheeran has spent years defending himself over “Thinking Out Loud.” Though the song was a commercial and critical success — it hit No. 2 on the Hot 100 before winning a Grammy award for song of the year — critics and the public quickly noticed similarities with “Let’s Get It On,” with one reviewer calling it an “incredibly obvious successor” to Gaye’s famed slow jam.
Sheeran was first sued by the heirs of Ed Townsend, who co-wrote “Let’s Get It On” with Gaye. It was that long-running case that last month culminated in a high-profile trial in Lower Manhattan, which featured passionate arguments from both sides and saw the singer himself playing the guitar from the witness stand. On May 4, the jurors returned a verdict that Sheeran and his co-writer Amy Wadge had not infringed the earlier song, clearing the star of millions of dollars in potential damages.
But even following that verdict, Sheeran was still facing another case filed by Structured Asset Sales, an entity owned by industry executive David Pullman that owns a separate one-third stake in Townsend’s copyrights. Last October, Judge Stanton ruled in that case that the pop star would need to face a jury of his peers. The judge said there was “no bright-line rule” for deciding whether Gaye’s selection and arrangement of common musical elements were creative enough to warrant copyright protection.
But on Tuesday, less than two weeks after the big verdict in the other case, Judge Stanton made the rare legal decision to “reconsider” his own ruling to send the case to trial.
Among other things, the judge cited the fact that the same combination of chords and harmonic rhythm had appeared in at least four other songs before “Let’s Get It On” was even released, including “Get Off Of My Cloud” by The Rolling Stones and “Georgy Girl” by The Seekers.
“Multiple songwriters have combined the two commonplace elements in the same manner for years,” Judge Stanton wrote. “If their combination were protected and not freely available to songwriters, the goal of copyright law … would be thwarted.”
The judge also cited a recent ruling that dismissed a case against Donald Glover over the Childish Gambino song “This Is America” on similar legal grounds, suggesting that the decision had changed the case law on how federal courts assess such combinations of unprotectable elements.
“To prevent manifest injustice, defendants’ motion for reconsideration is granted,” Judge Stanton wrote. “The Clerk of the Court is directed to close the case.”
In a statement to Billboard following the ruling, Sheeran’s lead attorney Donald S. Zakarin said his team and his client were “truly pleased” with the outcome: “Judge Stanton concluded that Ed Sheeran and Amy Wadge did not infringe, a conclusion consistent with the jury determination that Ed and Amy independently created Thinking Out Loud. This is an important victory not only for Ed and Amy and all songwriters but also for the music loving public.”
Though Tuesday’s ruling is a key victory for the pop star, it’s not the end of the road for the “Thinking Out Loud” litigation. Both the verdict earlier this month and the new ruling can still be appealed, which could take years to resolve. And Structured Asset Sales is also pursuing a third, more novel case based on a different copyright covering Gaye’s more famous recorded version of the song.
In an interview with Billboard following the ruling, Pullman said his company would appeal Tuesday’s decision on multiple grounds. And he stressed that he would continue to litigate the third case, which has been paused while the other cases played out.
“In the new case, in front of a different judge, we have the sound recording in that case,” Pullman said. “Through all these years of litigation, the one thing the defendants have been petrified of is the sound recording. They don’t want to play it for the jury, because then they would see the similarities.”
A federal judge says Ed Sheeran‘s copyright accusers can’t stage a live performance of Marvin Gaye’s iconic “Let’s Get It On” in the courtroom during an upcoming trial over Sheeran’s “Thinking Out Loud,” calling such evidence “unreliable and inadmissible.”
With a trial looming next month over whether Sheeran’s hit infringed Gaye‘s song, the star’s lawyers had warned that the proposed rendition would “intentionally misrepresent” the song in question in the case and, if performed in front of jurors, would constitute “grounds for a mistrial.”
In a decision Friday (March 10), U.S. District Judge Louis Stanton seemingly agreed. In a brief ruling that came without a lengthy written explanation, the judge ruled that “omissions, additions and errors” in the proposed performance of Gaye’s song made it “unreliable and inadmissible as evidence.”
But Judge Stanton declined to issue a similar ruling on a separate key question: Whether Sheeran’s accusers will be allowed to play a YouTube clip of a 2014 concert in which the star seamlessly transitioned between “Thinking” and “Let’s Get It On.”
In seeking to introduce the clip into the trial, lawyers for the accusers have argued that the mash-up video is “among the most important and critical evidence” in their case against Sheeran. The star’s attorneys have argued back that it’s falsely incriminating and will confuse jurors into ruling against the pop star.
In Friday’s decision, Judge Stanton denied Sheeran’s request to ban the video from the proceedings, meaning that the clip is fair game for now. But the judge also explicitly noted that Sheeran’s attorneys could re-raise their objections to the video at trial — meaning the infamous YouTube video might ultimately still be barred from the courtroom.
In a statement to Billboard, the lead attorney for the plaintiffs praised Judge Stanton’s ruling on the concert video: “We are very gratified that the court recognizes the significance of the fact that Mr. Sheeran elected to play ‘Let’s Get It On’ in his medley with ‘Thinking Out Loud,’” says Patrick R. Frank. “It proves the point we have asserted all along — ‘Thinking Out Loud’ would not exist but for ‘Let’s Get It On.’”
An attorney for Sheeran declined to comment on Friday’s orders.
The case against Sheeran was filed way back in 2017 by heirs of Ed Townsend, who co-wrote “Let’s Get It On.” Gaye’s heirs, who once famously sued Robin Thicke over accusations that his “Blurred Lines” was stolen from the legendary singer, are not involved in the case.
Sheeran’s lawyers have long argued that the star did nothing wrong, claiming that “Thinking Out Loud” and “Let’s Get It On” share only “unprotectable and commonplace elements” that are not covered by copyright law. But Judge Stanton has repeatedly refused to decide the case in their favor, ruling that the dispute is close enough that it must be decided by a jury.
Since the start, the case has been dominated by technical legal questions about the scope of the actual copyright that Townsend’s heirs own and about what audio could be played for jurors. Could they hear the famous version of “Let’s Get It On” performed by Gaye? Or only the more bare-bones “deposit copy” featuring basic musical notation that the heirs actually own?
Back in 2020, Stanton ruled that it was the latter. He pointed out that Gaye’s famous 1973 sound recording includes many musical elements that aren’t covered in the stripped-down copyright that’s owned by Townsend’s heirs.
Faced with that ruling, both sides have prepared special audio versions to play for jurors at the upcoming trial, aiming to include only the elements from the more basic version of “Let’s Get It On.” Sheeran’s lawyers hired a musicologist from New York University to create a computer-generated recording; attorneys for his accusers hired their own musician, who created two different recordings of the song.
Last month, Sheeran’s lawyers called foul. They said the accusers’ versions were a “distortion” of the deposit copy, containing musical elements from Gaye’s famous version that don’t appear in the deposit copy. And they warned that the Townsend heirs were planning not just to play their version, but to call the musician as a witness and stage a “purported live performance” of it during the trial.
“Allowing plaintiffs’ proposed performance to be played to the jury would be irremediably prejudicial, constituting grounds for a mistrial because, once LGO is performed for the jury containing elements nowhere found in the deposit copy, it cannot be unheard by the jurors,” Sheeran’s attorneys wrote.
In Friday’s order, Judge Stanton granted that motion, excluding the accusers’ versions from the trial and barring them from performing them live. He offered little detail on his reasoning, other than the statement about “omissions, additions and errors” he said would make the versions unreliable as evidence.
Barring a delay, the upcoming trial is set to kick off on April 24.
Ed Sheeran’s lawyers want a federal judge to rethink a recent decision that said the star must face a trial over whether “Thinking Out Loud” infringes Marvin Gaye‘s “Let’s Get It On,” warning that such rulings threaten to “strangle creation” by future songwriters.
Two weeks after Judge Louis Stanton refused to toss the case out, Sheeran’s attorneys respectfully told the judge Thursday (Oct. 13) that he was wrong – and that the only overlap between the two songs were simple musical elements that have “been used in music for centuries.”
“Affording copyright protection to a combination of only two unprotectable basic musical building blocks, such as the ones at issue here, would undermine a central purpose of copyright law – which is to encourage the creation of new works – and would instead strangle creation,” wrote Sheeran’s lead counsel Don Zakarin, an attorney at the firm Pryor Cashman.
In technical terms, Sheeran’s lawyers are asking the judge to reconsider his own ruling. If he does, it would be a rare step, typically only taken when it’s clear a judge has gotten something wrong. In the alternative, they’re asking for permission to file a fast-track appeal; if granted, it could delay any trial by at least a year.
Sheeran has long been dogged by questions of whether “Thinking Out Loud” (which spent 51 weeks on the Billboard Hot 100 after it was released in 2014) borrowed too much from “Let’s Get It On.” He did himself no favors in late 2014, when he was filmed on stage at a concert toggling between the two songs.
The singer was hit with the current lawsuit in 2018 – filed not by Gaye’s heirs but by an entity owned by industry executive David Pullman called Structured Asset Sales. That group owns a one-third stake in the copyrights of Ed Townsend, who co-wrote “Let’s Get It On” with Gaye.
Faced with the accusations, Sheeran’s lawyers argued that the elements he allegedly took from the Gaye’s song – a chord progression and the harmonic rhythm – were too commonplace to be the exclusive property of any one songwriter. They cited a number of other songs, including “Since I Lost My Baby” by The Temptations, that featured similar aspects.
For their part, Sheeran’s accusers admit that those elements, by themselves, are “commonplace and unprotectable.” But they say that when they were combined together in Gaye’s famous song, they became something more original and worthy of copyright protection.
In late September, Judge Stanton refused to side with either argument. He said there was “no bright-line rule” for deciding such questions, and that the pop star would need to make his arguments before a jury of his peers. The decision set the stage for a blockbuster trial at a Manhattan federal courthouse at some point in the future, though a date has not yet been set.
Thursday’s new motion, if granted, would avoid that trial entirely, or push it back if the judge approves the fast-track (“interlocutory”) appeal. In it, Sheeran’s attorneys argued that the court was correct about the lack of a “bright line,” but that the case against Sheeran still fell well short of the mark.
“No one can or should be able to claim the exclusive right to a chord progression and the unremarkable and unprotectable manner in which it is performed,” Sheeran’s lawyers wrote. “Defendants respectfully submit that the order overlooked these critically important legal considerations.”
The arguments from Sheeran’s lawyers sound quite a bit like comments the star himself has made about copyright litigation in the music industry. In April, after he defeated a similar case over “Shape of You,” Sheeran said “baseless” cases were taking a personal toll on him, and that he now films all of his recording sessions to disprove potential claims of infringement.
“It’s really damaging to the songwriting industry,” Sheeran said at the time. “There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify.”
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