Ed Sheeran US music copyright infringement case, it's not over yet

Three US cases were brought claiming that the song Thinking Out Loud performed by Ed Sheeran, copied Let’s Get It On performed by Marvin Gaye. These cases have been on-going for approximately 35 cat-years or five human years. A summary judgment was previously denied - covered here. As such, the case proceeded to trial in April 2023 in a US Federal Court in Manhattan.

Background

Thinking Out Loud was co-written by Ed Sheeran and Amy Wadge in 2015. Let’s Get It On was co-written by Marvin Gaye and Ed Townsend in 1973. Kathryn Townsend Griffin, the daughter of Ed Townsend, inherited a third of Townsend’s share of the musical work when he died in 2003. This case was brought by Kathryn Townsend Griffin, Ed Townsend’s sister, Helen Mcdonald, and The Estate of Townsend’s wife Cherrigale Townsend in July 2017, against Ed Sheeran and Amy Wadge. Additional cases were filed over the same songs by Structured Asset Sales, a company owned by investment banker David Pullman that is a beneficial owner of one-third of the copyright in the Townsend catalogue.

Are the songs substantially similar? 

Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff's work and, as a result of the copying there is a substantial similarity between the defendant's work and the protectable elements of the plaintiff’s work. Where a work has both protectable and unprotectable elements, the analysis must involve extracting the unprotectable elements from consideration. The court then only looks into whether the protectable elements, standing alone, are substantially similar.

 

Both parties submitted expert musicologist reports. Alexander Stewart’s report on behalf of the plaintiffs concluded that Thinking Out Loud had copied from Let’s Get It On, stating that similarities included the bass melody, drum parts, and harmonies, the structural placement in the overall form and slight shift in setting over the four-chord groove. 

Lawrence Ferrara provided a contrasting report on behalf of the defendants, stating that the songs did not share any significant structural, harmonic, rhythmic, melodic, or lyrical similarities. This report also submitted that any similarities between the two songs represented expression that was common prior to the creation of Let’s Get It On. Sheeran and Wadge argued that the songs are not substantially similar because the similar elements are commonplace and therefore not protected by copyright. 

At trial, the parties disputed whether the chord progression used in Let’s Get It On was commonplace. Townsend conceded that Sheeran's expert identified at least thirteen songs that predate Let’s Get It On and use the same chord progression, and that it appears in at least two guitar textbooks. The parties also disputed whether the harmonic rhythm of that four-chord progression - the second and fourth chords being 'anticipated' [placed ahead of the beat] was protectable. Defendants said it is a commonplace technique; plaintiffs argued it is distinctive.

As the trial concluded, the judge reiterated to the jury that independent creation is a complete defence to copyright infringement, no matter how similar two songs are.  

After six days of trial and three hours of jury deliberations a decision was reached. Sheeran’s Thinking Out Loud had been created independently and therefore did not infringe the copyright of Let’s Get It On.

On 16th May 2023, US District Judge Louis Stanton followed the same decision, dismissing the second case brought by Structured Asset Sales relating to the same songs but based on their copyright share. Judge Stanton found that the parts of Let's Get It On that Sheeran was accused of infringing were commonplace elements and therefore not eligible for copyright protection. He emphasised that chord progressions and harmonic rhythms are common building blocks of musical creation. 

But it’s not over yet… 

Alas, this is not the end of the story for Sheeran and Wadge, or the continuing trend of music copyright infringement cases. Townsend filed a notice of appeal on 1st June 2023. The notice did not state the grounds for the appeal, and so we will have to watch this space for further details...