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Judge declines to issue summary judgement in second song theft case over Ed Sheeran’s Thinking Out Loud

By | Published on Friday 30 September 2022

Ed Sheeran

A US judge has declined to dismiss one of the song-theft lawsuits that alleges Ed Sheeran ripped off Marvin Gaye’s ‘Let’s Get It On’ when he wrote his 2014 song ‘Thinking Out Loud’, concluding that a jury needs to consider whether the elements shared by the two songs are protected by copyright.

Sheeran’s lawyers have been quite busy over the years dealing with various allegations that the musician has lifted elements of existing songs when writing his pop music. That included the headline-grabbing legal battle in the UK courts over ‘Shape Of You’, in which the Sheeran side was victorious.

Over in the US, ‘Thinking Out Loud’ has resulted in multiple song-theft lawsuits. It was the estate of ‘Let’s Get It On’ co-writer Ed Townsend who originally sued back in 2016. But then a company called Structured Asset Sale – which also owns a stake in the ‘Let’s Get It On’ copyright – filed its own litigation. In fact, it sued twice. It’s the SAS lawsuit that’s been ruled on this week

The defences provided in song theft cases are now pretty routine. If the song that has been allegedly infringed isn’t well known, the accused song thief will argue that they couldn’t possibly have heard the earlier work before writing their song.

Sometimes the plaintiff will simply say that their song is available on the streaming services so the accused song thief could in theory have heard it. Though the courts generally now reject that line of argument, given the sheer quantity of music that is streaming these days. Other times six degrees of separation style theories are constructed as to how the earlier song got to the creators of the later song, though those often don’t stand up in court either.

Of course, where a song is famous – like Marvin Gaye’s ‘Let’s Get It On’ – the access point isn’t so relevant. And so defence number two becomes important. That goes as follows: yes, there are similarities between the two songs, but the similarities are simply short and common musical segments or lyrical phrases which, in isolation, are not substantial or original enough to enjoy copyright protection.

The plaintiff might then argue that, while the shared elements may be short and common, the original song combined those elements in an original way, and that combination of the musical or lyrical segments has been copied in the new song, and that’s where the claim for copyright infringement lies. That then usually results in lots of complicated chatter about the technicalities of music-making and copyright law.

In a summary of the lawsuit filed by SAS in his ruling on the summary judgement claims this week, judge Louis Stanton writes: “SAS’s infringement claim is based on Sheeran’s alleged copying of the combination of two elements from ‘Let’s Get It On’s deposit copy into ‘Thinking Out Loud’: the chord progression and the particular way in which anticipation is used in connection with the chord progression – ‘harmonic rhythm’ – collectively the ‘backing pattern'”.

“The parties agree that those elements, standing alone, are commonplace and unprotectable”, he adds. “Accordingly, Sheeran argues that summary judgment dismissing the claim is appropriate as a matter of law because the combination of two unprotectable elements is not sufficiently numerous or original to constitute an original work entitled to copyright protection under the ‘selection and arrangement’ theory of liability; and ‘Let’s Get It On’s backing pattern is not identical or nearly identical to that in ‘Thinking Out Loud'”.

But, he goes on: “The law does not support Sheeran’s contention that the combination of ‘Let’s Get It On’s chord progression and harmonic rhythm is insufficiently original to warrant it copyrightable. There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work. Moreover, where, as here, the parties’ experts disagree as to whether a particular musical element is original, summary judgment is inappropriate”.

So, that means, “although the two musical compositions are not identical, a jury could find that the overlap between the songs’ combination of chord progression and harmonic rhythm is very close. Accordingly, questions remain that are not resolvable by summary judgment, but require trial”.

That said, although the Sheeran side failed to get the lawsuit dismissed at this stage, they did get a couple of side rulings in their favour. If SAS were to win the legal battle, they want Sheeran’s live performances of ‘Thinking Out Loud’ to be taken into account when damages are calculated, as well as the monies made by sales and streams of the record. The judge is fine with that, but agreed with Team Sheeran that merch sales at those shows cannot be considered too.

Sheeran’s lawyers also raised issues with reports prepared by some of the experts hired by the SAS side, and the judge said that those experts’ reports and testimonies in their current form should be excluded from any future trial, although the experts can resubmit their reports to deal with the issues raised.