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Lawyers in Ed Sheeran song-theft case debate impact of Stairway To Heaven appeals court judgement

By | Published on Tuesday 16 October 2018

Ed Sheeran

Ed Sheeran being sued for allegedly ripping off a Marvin Gaye song might sound like a re-run of the famous ‘Blurred Lines’ song-theft case. But both sides in the legal dispute over Sheeran’s hit ‘Thinking Out Loud’ have been spending more time considering another recent plagiarism dispute.

Which is to say, both sides have written to the court explaining why last month’s appeals court judgement in the ‘Stairway To Heaven’ case backs up their arguments in the lawsuit that accuses ‘Thinking Out Loud’ of ripping off Gaye’s ‘Let’s Get It On’.

Whereas the ‘Blurred Lines’ case actually involved the family of Gaye himself, it was the heirs of ‘Let’s Get It On’ co-writer Ed Townsend who sued Sheeran in the US back in 2016. They alleged that ‘Thinking Out Loud’, released in 2014, lifted “melody, harmony and rhythm compositions” from the song Townsend co-wrote with Gaye back in the early 1970s. The legal dispute between Sheeran and the Townsend family has been rumbling on ever since.

A few months before the Townsend family went legal, Led Zeppelin successfully defeated another US-based song-theft lawsuit that alleged that ‘Stairway To Heaven’ ripped off an earlier work. Led Zep’s success in that case likely gave the Sheeran side reasons to be optimistic they could fight off the new litigation over ‘Thinking Out Loud’.

In particular, the ‘Stairway’ case seemed to reaffirm a principle under US law that says that copyright only protects songs as they are submitted to America’s Copyright Office. Which for older works like ‘Let’s Get It On’ means the sheet music that would have been submitted when the copyright was registered. Which in turn means that any extra elements added to the song when it was recorded are not protected by the song copyright.

This copyright technicality came up in both the ‘Blurred Lines’ and ‘Stairway’ cases. It is useful for people accused of ripping off songs from the era when only sheet music could be logged with the Copyright Office, because it narrows the copyright protection of the earlier work. Where a later song is accused of borrowing elements of the most famous recording of that earlier work, infringement actions might fail if those elements aren’t in the sheet music.

In the ‘Blurred Lines’ case, where Pharrell Williams and Robin Thicke were found liable for copyright infringement, the losing side argued that this principle wasn’t enforced properly. In the ‘Stairway’ case, where Led Zep successfully defeated the action, the defeated side argued this principle had been too strongly enforced.

This technicality favours the Sheeran side in the ‘Thinking Out Loud’ case and therefore the judgement in the ‘Stairway’ litigation seemed useful for their defence. But then last month the Ninth Circuit appeals court overturned the ruling in the ‘Stairway’ action, arguing that the judge in the original case made various errors, especially in the way he instructed the jurors. Which means the ‘Stairway’ lawsuit will be heard again.

Responding to that development, the Sheeran side wrote to the court overseeing the ‘Thinking Out Loud’ lawsuit to insist that, while the ‘Stairway’ judgement may have been overturned, remarks made in the appeals court judgement still favour them in regards to the limitations of the copyright protection on ‘Let’s Get It On’.

They wrote in a recent court filing: “[The appeals court] ruled that ‘the deposit copy of [the plaintiff’s work], rather than a sound recording, defined the scope of the protectable copyright’. In doing so, the Ninth Circuit addressed and rejected several of the arguments that plaintiffs made in this case … regarding the proper scope of copyright”.

The Townsend side responded with their own legal filing last week. Before getting onto the copyright limitation point, they presented an argument that other elements of the Ninth Circuit ruling back up their argument that the ‘Thinking Out Loud’ lawsuit must go before a jury, and cannot be decided through summary judgement, as the Sheeran side would like.

The new legal filing from the Townsends’ lawyers then states: “Defendants brought [this appeals judgement] to the courts attention for the sole purpose of bolstering their erroneous argument that the court cannot look beyond the sheet music comprising the deposit copy of [‘Let’s Get It On’]. However, [the ruling] does not say that”.

They then note how a common outcome, in cases like this, of the copyright limitation rule is that recordings of songs at the heart of any dispute cannot be played in court in the presence of the jury. But the Ninth Circuit criticised the fact that the judge in the ‘Stairway’ case didn’t allow the jury to witness Led Zep’s Jimmy Page listening to such recordings during that court battle.

The Townsend legal filing continues: “[The Ninth Circuit] assigned error to the District Court for its failure to allow the jury to hear the recorded copy of ‘Stairway To heaven’ while defendant James Page was on the stand”.

Given the different interpretations of last month’s Ninth Circuit judgement by the two sides in the ‘Thinking Out Loud’ case, it will be interesting to see how the judge now responds. As this issue about which elements of a song are protected by copyright now comes up quite frequently in US cases, it would be good to get some decent judicial clarity on the point.

So let’s just hope that when the judge in this case does muse on this issue he remembers to think out loud. Ha ha! And yeah, I took you on this long journey through tedious copyright complexities just to get to that punchline. What of it?