Ed Sheeran just can’t seem to catch a break. On the heels of the settlements of copyright infringement suits involving his songs “Photograph” and “The Rest of Our Life,” he is heading to trial for allegedly infringing the copyright of Marvin Gaye’s 1973 hit, “Let’s Get It On” with his 2014 song “Thinking Out Loud.”
The case started when Kathryn Griffin-Townsend — who is an heir of Ed Townsend (Gaye’s co-writer on “Let’s Get It On”) and who claims to own a partial copyright in the song — sued Sheeran in June 2018, alleging that “Thinking Out Loud” infringed “Let’s Get it On,”
Sheeran tried to get the case tossed out of court on a motion for summary judgment, claiming that the works were not substantially similar and any similarities only concerned unprotectable elements of the song. He further challenged Griffin’s standing to bring the lawsuit, claiming that she was not a proper owner of the copyright of “Let’s Get It On.”
However, the judge was not buying his arguments and denied his motion. When looking at the total concept and feel of the two songs, the court found that “[n]ot 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.”
Further, “[e]ven without considering the bass-line and drum parts, which are not present in the [‘Let’s Get It On’] deposit copy, the question whether [‘Thinking Out Loud’] infringes on [‘Let’s Get It On’] should be determined by trial rather than summarily.”
The court noted that a jury could find similarities in the harmonic progression and harmonic rhythm, with anticipated third and fourth chords, and that the similarities are so obvious that a lay observer could conclude parts of “Thinking Out Loud” were appropriated from “Let’s Get It On.”
In regards to the standing issue with Griffin, it arose because she was adopted by another family when she was a child. It was argued by Sheeran that she could not inherit from Townsend, who was her biological father. However, a California court had ruled that she was an heir. Sheeran’s defense team claimed that she withheld information from the court that she was adopted, to get the ruling. Nevertheless, their argument went nowhere because the federal judge in New York refused to disturb the court findings that she was an heir.
So, the beat goes on and they are off to trial, unless they settle before.
Eldonie S. Mason, Esq. is an entertainment, business and fashion attorney with Mason Firm, LLC. Visit masonfirmllc.com.