On July 17, 2017, the heirs of Ed Townsend–Kathryn Townsend Griffin, Cherrigale Townsend, and Helen McDonald–filed a lawsuit in New York against Ed Sheeran and various record and publishing companies for copyright infringement of the song “Let’s Get It On.” In 1973, Townsend and Gaye co-wrote the song “Let’s Get It On,” one of the most popular R&B soul songs ever. The Plaintiffs allege that Ed Sheeran’s 2014 hit “Thinking Out Loud,” written by Sheeran and Amy Wedge, infringes the copyright to “Let’s Get It On.” Sheeran is one of today’s most successful artists, who set the record in 2019 for the highest grossing tour ever at over $737 million. According to the Complaint, Sheeran’s song “Thinking Out Loud” sold over 2 million copies and is one of the best-selling songs of all time in the United Kingdom. So the Plaintiffs stand to recover a huge damages award if they prevail.
The test of infringement in the Second Circuit comes from Arnstein v. Porter. To state a claim for infringement, the Plaintiffs must prove that (1) Sheeran copied original expression or elements from Townsend and Gaye’s musical work and (2) Sheeran’s copying constituted misappropriation based on proof of substantial similarities between Townsend and Gaye’s “Let’s Get it On” and Sheeran’s “Thinking Out Loud.”
Griffin’s Evidence of Alleged Copying by Sheeran: To show that Sheeran copied Townsend and Gaye’s work, the Plaintiffs can submit direct evidence that Sheeran copied, or circumstantial evidence that he had reasonable access to Townsend and Gaye’s work and that probative similarities existed between the two works. The Complaint does not identify its theory of how Sheeran copied “Let’s Get It On.” But reasonable access probably will be easy to prov. Although the Complaint does not expressly argue that the song was in widespread dissemination, that is a likely argument the Plaintiffs will make to establish Sheeran had reasonable access to Gaye’s popular song before composing “Thinking Out Loud” in 2014.
The Complaint appears to rely on Sheeran’s own performance of “Let’s Get It On” in 2014 as evidence of both his copying of the Gaye/Townsend song and the similarities. The Complaint points to separate live performances by Ed Sheeran and the band Boyz II Men (who are not a part of the lawsuit) in which they mixed together performances of both “Thinking Out Loud” and “Let’s Get It On,” thereby showing how similar the two songs really are. The Plaintiffs claim that Sheeran’s song copies the heart of “Let’s Get It On” embodied in its harmonic progression and melodic and rhythmic elements, and that there are striking similarities between the two songs. The Complaint also cites Andrew Unterberger’s Spin magazine article, ‘Blurred Lines’ Isn’t Even the Biggest Marvin Gaye Ripoff This Decade: Ever heard Ed Sheeran’s “Thinking Out Loud”?
Plaintiffs’ Evidence of Misappropriation: As mentioned above, the Plaintiffs allege that Sheeran copied the heart of “Let’s Get It On,” specifically, the melodic, harmonic, and rhythmic elements, including the drum elements (but the trial court later ruled that the drums were not included in the deposit copy and are therefore not a part of the copyrighted work, see below).
Plaintiffs’ Allegations of Willful Infringement: On April 15, 2015 the Plaintiffs sent an email to Sheeran and the other Defendants notifying them of their wrongful actions. The complaint explains that, despite receiving the email notification, the Defendants still continued to infringe upon “Let’s Get It On.” Griffin alleges that because the Defendants continued to infringe upon “Let’s Get It On” even after receiving notice, the Defendants are willfully infringing.
Trial Court’s Ruling on Scope of Copyright: The case involved several motions, including a motion to dismiss filed by Sheeran. The court denied this motion and a jury trial was scheduled. However, the trial court postponed the case to await the decision of the appeal in a different copyright infringement case, Skidmore v. Led Zeppelin, in the Ninth Circuit. Sitting en banc, the Ninth Circuit ruled that the scope of a copyright for a musical work under the 1909 Copyright Act is limited to the sheet music that was deposited in the Copyright Office (the so-called “deposit copy”). Here, because the 1973 song “Let’s Get It On” was copyrighted under the 1909 Copyright Act, Judge Stanton agreed with the Led Zeppelin decision and ruled that the copyright to “Let’s Get It On” is limited to the deposit copy of the sheet music–i.e., what was submitted to the Copyright Office as a part of registration. As a result, the trial court granted Ed Sheeran’s motion in limine excluding evidence of sound recordings of “Let’s Get It On” at trial to the extent they contain additional elements (e.g., percussion/drums, bass-guitar, guitars, Gaye’s vocal performances, horns, flutes) that are not included in the deposit copy of “Let’s Get It On.”
Although the trial court’s decision excluding the sound recording of “Let’s Get It On” to the extent it has additional elements is a big victory for Sheeran, it by no means guarantees that he will prevail or that the jury will find that he did not infringe the copyright to the song. In the lawsuit over Pharrell and Robin Thicke’s “Blurred Lines,” the trial court in California granted a similar motion to exclude a sound recording of Gaye’s “Got To Give It Up.” Even so, the jury decided the case in favor of the Gaye estate.
What’s at Stake: Both “Let’s Get It On” and “Thinking Out Loud” are incredibly popular. Marvin Gaye is an icon. Ed Sheeran is one of the most popular artists today. “Let’s Get It On” has over 150 million streams on Spotify, which is very substantial considering the song was released in 1973. “Thinking Out Loud” has over 1.5 billion streams on Spotify and is likely one of the most popular songs of the 2010s decade. The Plaintiffs stand to recover a huge damages award if they prevail.
But that’s a big if. Although recordings of the two songs do sound very similar, the limitation of the copyright to the deposit copy of “Let’s Get It On” might greatly weaken the Plaintiffs’ claim of substantial similarity. Their case must prevail simply on the musical notes in the deposit copy. So we will have to see what it contains. The musicologists in the case will have to confine their analysis to the deposit copy.
If the jury finds no infringement, then this case’s significance is tied to the principle that the scope of a musical work copyright under the 1909 Act is limited to the sheet music deposited in the Copyright Office. The greatest impact of the principle recognized by Led Zeppelin and this court will be on copyright cases involving older musical works copyrighted before Jan. 1, 1978. If those works were unpublished when first registered with a deposit of the sheet music in the Copyright Office, their copyrights will be limited to the sheet music.
But if the jury finds infringement, then the case could have larger ramifications for music lawsuits. Earlier this year, a trilogy of three cases, starting with Led Zeppelin, appeared to signal a shift in music lawsuits, with courts in the Ninth Circuit asserting a greater gatekeeping role in deciding the scope of copyrights for musical works, including the court defining what elements are not copyrightable. If the jury finds in favor of the Plaintiffs, the court will have to consider whether to perform such a gatekeeping role by scrutinizing if there are uncopyrightable elements in “Let’s Get It On.”
Due to the COVID pandemic, the status conference in the case was postponed until June 2020. We can expect the case will resume once the courts reopen in New York.
Songs
“Let’s Get It On” by Marvin Gaye and Ed Townsend
“Thinking Out Loud” by Ed Sheearan
Documents
Complaint by Kathryn Townsend Griffin, Cherrigale Townsend, and Helen McDonald
https://musicinfringement.art.blog/wp-content/uploads/2020/06/griffin_et_al_v._sheeran_et_a-decision.pdfCourt Decision Granting Motion in Limine
Judge
Attorneys
Patrick Frank, Keisha Rice, and Katherine Viker, Frank & Rice PA for Plaintiffs
Donald Zakarin, Ilene Farkas, and Andrew Goldsmith, Pryor Cashman LLP for Defendant Ed Sheeran
Music Infringement 