Thinking Out Loud
Ed Sheeran’s years-long copyright battle — over whether he copied “Thinking Out Loud” from Marvin Gaye’s iconic “Let’s Get It On” — isn’t over just yet.
Although one of Sheeran’s accusers dropped their case last month, a separate set of plaintiffs filed their opening salvo at a federal appeals court on Friday (Sept. 29), setting the stage for years more litigation and a ruling that could revive the case against the pop star.
“The district court’s erroneous decisions should be reversed, and appellant’s case restored so that it can proceed to trial,” Sheeran’s accusers wrote in their opening brief to the appeals court.
Sheeran was first sued over “Thinking Out Loud” by the daughter of Ed Townsend, who co-wrote the famed 1973 tune with Gaye. It was that long-running case that culminated in a May jury verdict that cleared Sheeran of any wrongdoing. Last week, Kathryn Griffin Townsend’s lawyers dropped their efforts to overturn that verdict, ending that leg of the legal battle.
But Sheeran has long faced a separate, closely related case filed by an entity called Structured Asset Sales (owned by industry executive David Pullman) that controls a different one-third stake in Townsend’s copyrights. In May, weeks after the big jury verdict, a federal judge tossed out that case, too, ruling that it was seeking an “impermissible monopoly over a basic musical building block.”
Unlike Griffin, however, Structured Asset Sales seems ready for a long appellate battle.
In their opening brief Friday at the U.S. Court of Appeal for the Second Circuit, Structure Asset Sales’ lawyers cited a wide range of supposed errors by Judge Louis Stanton in that May ruling dismissing the case, including his decision about “musical building blocks.”
But they mostly focused on what they said was a far more basic error: that Judge Stanton refused to let them cite the famous recorded version of “Let’s Get It On” in making their case. Instead, the judge ruled that Structured Asset Sales owned only the rights to a “deposit copy” — the basic notation filed at the Copyright Office decades ago to secure a copyright registration. That erroneous holding, the company’s lawyers said, “severely” limited their rights and unfairly hurt their ability to win the case.
“Musical notation is a way of trying to capture the ephemeral in the physical, but it is and has always been limited in its ability to capture every nuance of the work,” Structured Asset Sales’ lawyers wrote. “Deposit copies do not, and were never meant to be, a limitation on the scope of the copyright they represent.”
Structure Asset Sales’ lawyers also called into question the timing of Judge Stanton’s ruling, which came just weeks after the jury verdict in the Griffin case and seemingly reversed his own previous decision that the case would need to go to trial. In an unusual flourish, the company’s lawyers said the judge’s logic was “a mystery.”
An attorney for Sheeran did not immediately return a request for comment. Sheeran’s legal team will file their own appellate brief in the months to come.
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 […]
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.
In an upcoming courtroom showdown, is a YouTube video of Ed Sheeran switching between his “Thinking Out Loud” and Marvin Gaye‘s “Let’s Get It On” a smoking gun? Or just smoke and mirrors?
Facing a trial in April over whether his smash hit infringed Gaye‘s iconic song, Sheeran’s lawyers asked a federal judge Tuesday (Feb. 7) to block his accusers from citing that clip, which captures the star at a 2014 concert entertaining the crowd by seamlessly toggling between the two songs.
The problem? Sheeran’s lawyers say the mash-up video is falsely incriminating. It could look to jurors like damning evidence that Sheeran copied “Let’s Get It On,” they say, but only actually shows that both songs contain a common chord progression — one that isn’t covered by copyrights and was “freely available to all songwriters.”
“There are dozens if not hundreds of songs that predate and postdate LGO utilizing the same or similar chord progression,” Sheeran’s lawyers wrote. “These medleys are irrelevant to any issue in the case and would be misleading [and] confuse the jury.”
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, since “Thinking Out Loud” and “Let’s Get It On” share only “unprotectable and commonplace elements” that are not covered by copyright law. But Judge Louis D. 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.
In the lead-up to the trial, attorneys for the Townsend heirs filed a formal notice that they planned to play the YouTube clip for jurors. In the video — a 6-minute snippet of a November 2014 concert in Zurich that’s been viewed nearly 300,000 times — Sheeran abruptly switches from “Thinking” to “Lets” and back again, drawing huge cheers from the crowd.
It’s not surprising that Sheeran’s accusers want to use the medley video. In a 2019 ruling in which he sent the case to trial, Judge Stanton specifically highlighted the clip as potential evidence that might resonate with jurors, saying they “may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between LGO and TOL.”
But in Tuesday’s objections, Sheeran’s lawyers argued that the jury would be impressed for all the wrong reasons.
“The admission of this evidence will mislead the jury and cause unjustified prejudice – suggesting to the jury, inaccurately, that segueing from singing the lyrics of TOL over the TOL chord progression to singing a snippet of the lyrics of LGO over the TOL chord progression is ‘evidence’ that Sheeran copied LGO,” they wrote.
Sheeran’s lawyers also argued that letting such evidence play a key role in the upcoming trial would have a broader “chilling effect” on the music industry and on medleys, which they called an “important, enduring aspect of live concerts.”
“Such ‘mash-ups’ underscore the fact … that music has been, and always will be, built on commonplace and unprotectable musical building blocks freely available to all composers to use,” Sheeran’s lawyers wrote, but allowing it to serve as evidence would deter artists “for fear of creating a suggestion of infringement and encouraging unfounded claims.”
In a statement to Billboard, the Townsend heirs attorney Patrick R. Frank strongly disagreed with Sheeran’s attorneys, pointing directly to Judge Stanton’s previous ruling about the medley clip’s potential value to jurors.
“The passage of time has not diminished the acknowledged evidentiary significance of the medley,” Frank said. “I suspect that if there was, in fact, a legally-cognizable basis for [Sheeran’s motion], we would have seen the motion quite some time ago, as opposed to on the proverbial ‘eve’ an imminent trial.”
Frank will file his own formal response to Sheeran’s motion in court in the coming weeks.
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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