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Stairway To Heaven ruling has impact on ongoing Thinking Out Loud song theft case

By | Published on Thursday 26 March 2020

Ed Sheeran

This month’s ruling in America’s Ninth Circuit appeals court on the ‘Stairway To Heaven’ copyright dispute has already been cited in two other song-theft cases. After it was referenced in last week’s appeal judgement on the Katy Perry ‘Dark Horse’ case, now another judge has cited a ‘Stairway’ precedent in the ongoing dispute over Ed Sheeran’s ‘Thinking Out Loud’.

The Ninth Circuit, of course, recently upheld a lower court decision that said Led Zeppelin did not infringe earlier work ‘Taurus’ when they wrote ‘Stairway To Heaven’. That judgement seemingly confirmed that short musical segments are not protected by copyright, so when two songs share those segments, no copyright infringement has occurred.

It also confirmed a specific technicality of American law which says that only a song as originally registered with the US Copyright Office is protected by copyright. For older works – when only sheet music could be logged with the Copyright Office – that means a song is only protected in the way it was written down. Which means extra elements added in the studio on the song’s original and/or most famous recording are not protected.

That latter point is relevant to the ongoing dispute over ‘Thinking Out Loud’. Sheeran is accused of lifting elements of Marvin Gaye’s ‘Let’s Get It On’ when writing his 2014 hit. He was sued through the US courts in 2016 by the estate of Ed Townsend, who co-wrote the 1973 Gaye classic.

That dispute continues to go through the motions and is currently scheduled to reach a jury trial in September. One question previously raised was whether or not the Townsend side would be allowed to play the recorded version of ‘Let’s Get It On’ in the courtroom.

The judge overseeing the dispute, Louis L Stanton, previously paused the ‘Thinking Out Loud’ litigation pending the appeals court judgement on the ‘Stairway To Heaven’ case, musing that “whatever the Ninth Circuit says, it’s going to be damned educational”.

This week Stanton communicated his current thinking on whether or not the Townsend side will be able to play some or all of the recording of ‘Let’s Get It On’ in court. Although he said he’d make a final decision on the matter at the start of the trial itself, he added that the answer will probably be “no”.

Because, after all, in this month’s Led Zeppelin ruling, the Ninth Circuit clearly stated that “the scope of the copyright is limited by the deposit copy”.

Stanton went on: “The Gaye sound recording contains many elements: percussion/drums, bass-guitar, guitars, Gaye’s vocal performances, horns, flutes, etc, which do not appear in the simple melody of the deposit copy. These additional elements – at least some of which appear in ‘Thinking Out Loud in more or less similar form – are not protected by copyright, because they are not in the deposit copy”.

“Thus the Gaye sound recording is inadmissible in any way which might confuse the jury into thinking it represents what is protected by copyright”, he continued. “For example, comparisons of elements in ‘Thinking Out Loud’ which are similar to elements in the Gaye sound recording – but not the deposit copy – will not be allowed”.

Last week another American judge overturned last year’s jury decision in the Katy Perry ‘Dark Horse’ case, in which the pop star was accused of ripping off earlier song ‘Joyful Noise’. That judge also cited albeit other precedents set in the ‘Stairway’ judgement while concluding that the musical elements that ‘Joyful Noise’ and ‘Dark Horse’ have in common are not substantial or original enough to enjoy copyright protection.