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. 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 Ed Sheeran’s 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 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.”
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.
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, as with the Shape of You case, want to defend the case as a matter of principle. That said, a stark difference between the Shape of You case and this case, 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.
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.
For more information or advice on music copyright or clearance, please contact a member of our Intellectual Property Team.
