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Ed Sheeran asks for Thinking Out Loud copyright case to be postponed because of COVID travel restrictions

By Chris Cooke | Published on Wednesday 7 October 2020

Ed Sheeran’s lawyers have asked that the court hearing for the big song-theft legal battle over his song ‘Thinking Out Loud’ be postponed into 2021 because of current COVID travel restrictions. If that can’t happen, he and his team would have to spend four weeks in quarantine in two different countries before showing up at court.

Sheeran is accused of ripping off Marvin Gaye’s ‘Let’s Get It On’ on his 2014 hit and has been sued by the estate of the late songwriter Ed Townsend, who co-wrote Gaye’s song.

There are plenty of parallels between this and other recent song-theft cases in the US courts, with the ruling in the ‘Stairway To Heaven’ litigation arguably favouring the Sheeran side. With the US Supreme Court declining to hear that case this week, the Sheeran-favouring judgement issued in the Ninth Circuit appeals court now stands.

Last month the Townsend side tried to re-position the case as being a stand against the exploitation of black musicians by the mainstream music industry. And with that in mind renowned civil rights lawyer Ben Crump has joined the Townsend family’s team.

The dispute is due to go before a jury in the New York courts on 12 Nov, with jury selection starting two days earlier. But Sheeran, his co-defendants and main witnesses – including songwriter Amy Wadge, producer Jake Gosling and manager Stuart Camp – are all currently in the UK. And there is currently a COVID-caused travel ban between the UK and the US.

That would mean, to get to the court, Sheeran et al would first have to travel to a country not currently subject to a US travel ban. They would then have to stay there for at least fourteen days. Even if such a two week quarantine wasn’t mandated by that country, they need to be out of the UK for at least fourteen days to get access into the US. On arrival in New York state, they’d then need to quarantine for another fourteen days under that state’s COVID travel rules.

In a letter to the judge, Sheeran’s lawyer Donald S Zakarin writes: “I am advised that the only way UK citizens can presently enter the United States (and I am not even sure this approach is certain to work) is to first travel to a country from which the United States (and New York) permit entry. Then the UK citizens would have to remain quarantined in that country for at least two weeks”.

Even that workaround might not work. Zakarin points out that, while in transit, the US or New York might add the country where Sheeran was quarantining to its travel ban list. Or one of his party could start to displaying COVID symptoms, preventing the whole team from travelling on. Or, even if everything did work on the Sheeran side and they got into the US, COVID rules in New York could still change forcing the court case to be postponed anyway.

“We cannot reasonably ask witnesses to undertake travel to a foreign country for several weeks just to possibly gain entry into the United States and New York to attend a trial that may or may not go forward as scheduled”, Zakarin adds.

He goes on: “In light of these restrictions, much as we wish to try this case as soon as possible, the current travel restrictions and the risks of travel make it virtually impossible for us to enable our witnesses to attend trial without incurring enormous expense and disruption to their lives, as well as potentially jeopardising their health by having to travel multiple times to multiple countries”.

With all that in mind, Zakarin proposes postponing the court case until next spring, although says his side would be more than happy to still submit pre-trial papers on the original 2 Nov deadline. Zakarin doesn’t mention the option of shifting the whole court hearing online.

It remains to be seen how the judge now responds.