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Let's get it on (again): Ed Sheeran to stand trial in US over copyright claims

AuthorsSamantha ThompsonColin Bell

4 min read

Intellectual Property

Close-up of a large-diaphragm studio microphone on a boom arm, with a mixing desk, speakers and a blurred monitor in a music recording studio.

Ed Sheeran is not a stranger to copyright claims against his songs. In April 2022, a judge found in his favour in a claim for copyright infringement against his song Shape of You.

However, he has also been battling various copyright allegations against his song Thinking Out Loud since its release back in 2014. 

Here, Samantha Thompson and Colin Bell explores the copyright claim, what a jury will be asked to decide and what the case could mean for the wider music industry.

 

The copyright claim against Thinking Out Loud

Structured Asset Sales (the Claimant), who own one third of the copyright claim in Let’s Get It On by Marvin Gaye, issued a claim against Sheeran in 2018 alleging that Thinking Out Loud copies the “melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping” of Gaye’s song. Sheeran sought to get this case dismissed and called for the accusations to be dropped. 

 

The case heads to trial

The Judge handling this case has now rejected Sheeran’s second attempt to get the case dismissed, and so the case is headed to trial. 

Sheeran’s lawyers argued that the elements alleged to be infringed were unprotectable by copyright as they were too common. 

However the judge held that: 

“There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work ... A work may be copyrightable even though it is entirely a compilation of unprotectable elements.”

 

What will the jury decide?

Instead, the Judge has ordered that a jury must decide whether the two songs are substantially similar. In his order, Judge Stanton stated that “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”.

In addition to determining whether the songs are substantially similar, the Judge has ruled that the jury must also decide whether the Claimant can include revenue from Sheeran’s concerts in the damages.

It is worth noting that this is one of three lawsuits by related parties in respect of this song. The other case by the Claimant is currently stayed and claim from a separate portion of the same estate is awaiting trial.

 

Could the case be settled?

The prospect of a jury trial dealing with complex copyright issues — and the potential for significant damages to be awarded — may encourage Sheeran to consider settlement in this case, even if he disputes the allegations. 

Alternatively, he may want to defend the case as a matter of principle, as with the Shape of You case. That said, a stark difference between the Shape of You case and this is that, in the Shape of You case, the Judge concluded that Ed Sheeran had not even heard the Claimant’s song that he was alleged to have infringed. 

In this case, there is no getting away from the fact that Marvin Gaye’s Let’s Get It On will have been well known to Ed Sheeran and (if the relevant elements are held to be protectable by copyright) he could be found to have deliberately or subconsciously copied the work.

 

What could this mean for the music industry?

It is likely the whole of the music industry will be keeping close eye on the development of this case as well as Taylor Swift’s Shake It Off case to see how the finding may impact musical and lyrical compositions going forward. 

 

Talk to us

Our experienced IP team advises artists, rights holders and creative businesses on copyright protection, clearance and infringement claims across the music industry.

For specialist support, talk to our team by calling 0333 004 4488, emailing hello@brabners.com or completing our contact form.

Samantha Thompson

Samantha is a Graduate Solicitor Apprentice in our Commercial team.

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Samantha Thompson Photo

Colin Bell

Colin is a Partner and leads our intellectual property and technology teams.

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Colin Bell

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