Ed Sheeran is being sued for copyright infringement by Ed Townsend’s estate, who himself, alongside Marvin Gaye, wrote ‘Let’s Get It On’.

Mr Townsend’s heirs have brought a $100,000,000 suit against Mr Sheeran over his song ‘Thinking Out Loud’, which they allege copies the “melody, rhythms, harmonies, drums, bass line, backing chorus, tempo, syncopation and looping” of ‘Let’s Get It On’.

When the songs are compared, it is clear that the  guitar riff is very similar, particularly when one song is transposed to the same key as the other (you can hear the similarities in this video).

The original trial was scheduled for September of this year, however, US District Judge Stanton decided to delay the trial date until after the outcome of a similar copyright infringement case involving Led Zeppelin and the band Spirit concerning the song ‘Stairway to Heaven’.

In January, Mr Sheeran’s lawyers attempted unsuccessfully to file a motion to dismiss the case which was denied as, according to the judge, there were “substantial similarities between several of the two works’ musical elements”. To make matters worse, the judge also alluded to a video showing Mr Sheeran transitioning between ‘Think Out Loud’ and ‘Let’s Get It On’.

Copyright in Musical Works in the USA

In order to prove copyright infringement, the copyright holder must show he has a valid copyright and that the work was used without consent. Mr Sheeran has defended the claim saying that the work was not copied.

Music copyright in the US is governed by the Copyright Act of 1976. Section 106 governs the rights around copyright, which, amongst others, gives the copyright owner the exclusive right to reproduce, distribute, perform and prepare derivative works.

In terms of when a derivative work is considered to be suitable for copyright protection, the work in question must have some or all of the elements of the original work. The permission of the original author is required in order to publish such a derivative work without a claim in copyright.

A possible defence to a claim that a work has been copied by being a derivative work would be that the work has been inspired by the other song and, as such, is not a derivative work. It could be that Sheeran’s lawyers mount this defence, although it may be hard to argue that the riff used is purely inspiration as opposed to a derivative work.

Ed Sheeran’s Problems Continue

This suit comes after Ed Sheeran was taken to court by Thomas Leonard and Martin Harrington, the composers of the song ‘Amazing’ which was performed by X-Factor winner Matt Cardle and whose chorus allegedly sounded very similar to Ed Sheeran’s ‘Photograph’.  The case was eventually settled out of court in 2017 and it remains to be seen whether Ed Sheeran’s legal team will try to take this current case all the way.

The copyright infringement in the ‘Let’s Get It On’ case is, arguably, not as strong as the ‘Amazing’ case given that ‘Thinking Out Loud’ does not have a similar melody, whilst ‘Photograph’ had an almost identical melody in the chorus to ‘Amazing’, as well as similar chord progressions.

In another case involving a song by Marvin Gaye, it was alleged that ‘Blurred Lines’, a song performed by Robin Thicke, Pharrell Williams and T.I., amounted to copyright infringement of ‘Got To Give Up’. The verdict was controversial given that it was a work deemed to be inspired by Gaye’s work as opposed to being copied directly. It was argued that this decision could open the flood-gates to a greater amount of music copyright infringement litigation, as inspired by is both vague and may hinder creativity and inspiration.

The outcome of both this case as well as the Led Zeppelin case could have big implications for the music industry and copyright litigation and may bolster the position under the ‘Blurred Lines’ case.