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Ed Sheeran and LMFAO copyright cases will proceed to jury trials

By | Published on Tuesday 8 January 2019

Ed Sheeran

A judge in the US last week declined to dismiss the ongoing song-theft lawsuit that accuses that there Ed Sheeran of ripping off Marvin Gaye’s ‘Let’s Get It On’. Sheeran’s legal reps had sought a summary judgement in their favour, but the judge said that “material facts are in dispute” and therefore the case should go before a jury.

The heirs of ‘Let’s Get It On’ co-writer Ed Townsend sued Sheeran back in 2016 alleging that the latter’s 2014 hit ‘Thinking Out Loud’ lifts “melody, harmony and rhythm compositions” from the song the former co-wrote with Gaye in the early 1970s.

Lawyers for both sides were last seen arguing over what developments in another notable song-theft legal battle – the one over Led Zeppelin’s ‘Stairway To Heaven’ – meant for their own dispute. In September, a US appeals court overturned an earlier ruling in a legal battle between Led Zepp and the estate of songwriter Randy Wolfe. The latter accused the former of ripping off Wolfe-penned song ‘Taurus’ on ‘Stairway’.

One factor that is important in both the ‘Stairway To Heaven’ and ‘Thinking Out Loud’ cases is a principle in American law that says copyright only protects those elements of a song that have been logged with the US Copyright Office and not any extra elements that were added in the studio when the most famous recording of the song was made.

This principle has come up in a number of song-theft cases in recent years where someone is accused of ripping off an older song that was published in an era when you could only log sheet music with the Copyright Office. The person accused of plagiarism usually argues that they simply borrowed a vibe from the earlier work’s most famous recording, but didn’t actually lift any elements from the song as it was originally represented in the sheet music.

There remains much debate as to how much this principle should be enforced in these cases, if at all.

In that other recent high profile song-theft dispute involving a Marvin Gaye record – ie the ‘Blurred Lines’ case – Robin Thicke and Pharrell Williams lost despite arguing that this limitation meant they weren’t liable for copyright infringement. But in the ‘Stairway’ case the same limitation helped Led Zep defeat the litigation. Except that case will now have to be heard anew after appeals court judges ruled that the jury had been badly advised.

In the ‘Thinking Out Loud’ lawsuit the limitation, if applied, aids the Sheeran side. The judge hearing the case didn’t reach a conclusion on this particular debate in his recent ruling, instead saying that there were other factors that also required a jury trial. He wrote that: “Regardless of whether the deposit copy or sound recording of ‘LGO’ defines the scope of the composition’s copyright, material facts are in dispute. Accordingly, defendants’ motion for summary judgment is denied”.

The judge added: “Not only are there substantial similarities between several of the two works’ musical elements, but an ordinary observer might experience the aesthetic appeal of both works as the same”. Referencing a YouTube video in which Sheeran himself mashes his song together with ‘Let’s Get It On’ during a gig, the judge went on: “[A jury] may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between ‘LGO’ and ‘TOL'”. And so the case continues.

Elsewhere in judges ruling that a complicated copyright case should go before a jury, the judge overseeing the song-theft dispute between Rick Ross and LMFAO has likewise said that that case should now go to jury trial. Though Ross himself will no longer be involved.

Ross sued LMFAO over their 2010 hit ‘Party Rock Anthem’ and its line “everyday I’m shuffling”, which he said ripped off the lyric “everyday I’m hustlin” from his 2006 track ‘Hustlin’. Which means the question at the heart of this dispute is whether or not LMFAO using the words “everyday I’m” can possibly constitute copyright infringement.

However, there have been a bunch of technicalities to deal with before that question can be asked. The original technicalities related to screw ups that were made with the registration of ‘Hustlin’ with the US Copyright office. Those technicalities originally caused the case to be dismissed entirely, but an appeals court then reinstated the lawsuit in 2017.

The next round of technicalities relate to whether Ross and his co-writers Andrew Harr and Jermaine Jackson are actually owners of the copyright in ‘Hustlin’ or whether the rights are instead owned by corporate entities the three men have links to. The judge concluded that Ross had previously given up his rights in the song and therefore could no longer be involved in the case, but that things are less clear with Harr and Jackson.

To that end, questions over the ownership status of Harr and Jackson’s slice of ‘Hustlin’ should be put to a jury, the judge said. Which means this case will also plod on towards a jury trial. Where, you never know, maybe all the technicalities will finally be resolved and we can instead ask that question as to whether two borrowed words in a lyric can be infringement.