A New York judge has ruled that a claim against Ed Sheeran over alleged similarities between his hit Thinking Out Loud and Marvin Gaye’s Let’s Get It On should go before a jury, because material facts are in dispute.
The lawsuit has been brought by the estate of Marvin Gaye’s Let’s Get It On co-writer Ed Townsend, who sued Sheeran (along with co-defendants Sony/ATV Music Publishing, and Atlantic Records) in 2016 alleging that Thinking Out Loud lifts “melody, harmony and rhythm compositions” from the song Townsend co-wrote with Gaye in the early 1970s.
In dismissing an application by the defendants for summary judgment, the judge said “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”.
He said it was in dispute whether the harmonic rhythm of Let’s Get It On was too common to deserve copyright protection.
There is a video on YouTube which shows Sheeran playing live and segueing from his own song into Let’s Get It On to the delight of his fans.
The Judge said that jurors “may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between [the songs].”
Sheeran’s lawyers rely on what they call the “sombre, melancholic tones, addressing long-lasting romantic love” of Thinking Out Loud as different from Let’s Get It On, which they memorably describe as a “sexual anthem”.
One issue that has loomed large in the case is the question of whether American copyright law only protects those elements of a song that have been logged with the US Copyright Office.
This is usually relied on by defendants to such claims, who say that while they were inspired by the earlier work, this inspiration does not extend to using elements of a song that has been logged with the US Copyright Office.
In this case, where Sheeran is relying on the principle, the Judge held that a trial was required “regardless of whether the deposit copy or sound recording of ‘LGO’ defines the scope of the composition’s copyright”.
Pat Frank, a lawyer for the plaintiffs, said his clients were looking forward to their day in court “when this matter is tried.”
The same judge is also hearing a separate claim over similarities between the two songs, brought by Structured Asset Sales, a company that claims it also owns part of Gaye’s song.
This is the latest example of high-profile copyright litigation involving the two artists.
As previously reported in zoom-in, Marvin Gaye’s estate successfully sued Robin Thicke and Pharrell Williams for allegedly copying Gaye’s hit Got to Give It Up in their 2013 track Blurred Lines.
The estate won $5.3 million, and the jury’s verdict was finally upheld on appeal late last year.
Prolific hitmaker Sheeran has also previously been involved in a copyright claim which saw him compelled to give the writers and producer of the TLC song No Scrubs writing credits on his song Shape of You, due to alleged similarities between them.
The phenomenon of claims by owners of the intellectual property in historic pop songs against those who write modern hits shows no sign of abating, particularly where there is the prospect of a jury making an award of substantial damages.