MANHATTAN (CN) — The copyright trial against British pop singer Ed Sheeran for allegedly copying Marvin Gaye’s legendary 1973 song “Let’s Get It On” should never have been brought, his attorneys told jurors in their closing argument Wednesday before the civil case adjourned for deliberations.
“They were not writing a song about ‘getting it on,’ not musically, not lyrically,” Sheeran’s attorney Ilene Farkas pressed, speaking about Sheeran and his collaborator, Amy Wadge, who wrote “Thinking Out Loud” in 2014 at the redheaded star's home.
As they composed a ballad ruminating on the themes of everlasting love and mortality — themes they were contemplating after the death of Sheeran's grandfather, and its effect on his grandmother's health — Farkas insisted that “Let’s Get It On” was nowhere on their minds.
“It was not a song they knew well enough to copy if they had wanted to copy it,” she added of the Motown classic.
Deriding the case Sheeran faces from the estate of Ed Townsend, Gaye's co-writer on “Let’s Get It On," the defense says a judgment of liability would stake ownership for the first time on “commonplace and unprotectable” elements that songwriters use freely.
“They are commonly used building blocks in music, like the ABCS, the scaffolding of music,” Farkas argued.
So prevalent is the chord progression at the hear of this case that it was used in at least 33 songs before “Let’s Get It On” and remained in common use for decades after, appearing in approximately 70 other songs, Farkas told jurors, pointing to examples from the chart-topping acts including The Beatles, The Bee Gees, The Beach Boys and Elton John.
Sheeran’s defense knocked the analysis of the plaintiffs’ expert musicologist as “Hail Mary attempt to manufacture a claim,” and “disingenuous and half-baked.”
The jury heard from Sheeran himself on the witness stand, where the mop-topped crooner expressed his admiration for Van Morrison, a Northern Irish singer whose sentimental and melodic acoustic guitar-based songs imparted enormous influence on Sheeran’s songwriting, so much so that record label executives colloquially referred to “Thinking Out Loud” as “the Van song.”
Sheeran testified that the four-chord progression — “D, D with an F sharp, G, A.” — in “Thinking Out Loud” is a “very common chord progression” and can very easily be used with Van Morrison’s type of music.
Sheeran’s lawyers named at least four Morrison songs that he says are materially similar to “Thinking Out Loud,” including “Crazy Love” and “Tupelo Honey,” snippets of which he played in court on Monday.
The estate suing Sheeran has one remaining beneficiary, Kathryn Griffin Townsend, the daughter of Townsend and his sole living heir.
While the Townsends own a 22% share in the copyrights to what is called the deposit copy, the original sheet music for “Let’s Get It On,” that copyright does not cover the recording. Sheeran’s defense hinges on distinguishing the sheet music from Gaye's arrangement of “Let’s Get It On” for Motown-subsidiary label Tamla in 1973.
Renowned civil rights attorney Ben Crump delivered part of closing arguments on behalf of the Townsend family, reprising a line from his opening arguments for the plaintiffs: “This case about giving credit where credit is due.”
On Monday, Sheeran said he was personally insulted by the allegations in the copyright lawsuit, and said a jury finding him liable for plagiarism would be an existential threat to the type of massively popular ballad songwriting he’s known for.
“If that happens, I'm done, I'm stopping,” he testified when asked by Farkas about the impact of civil trial.
Crump urged jurors on Wednesday afternoon to not buy into Sheeran’s fatalistic bluff. “No matter your verdict, I promise he won’t do that,” the lawyer said. “He will continue to have an illustrious career.”
Florida attorney Keisha Dorlisa Rice, who also spoke for the plaintiffs in closing arguments on Wednesday, insisted that 70% of “Thinking Out Loud” is “virtually identical” to “Let’s Get It On”
"Mr. Sheeran is counting on you to be very, very overwhelmed by his commercial success," she said. "The defendants are hoping that you’d be blinded by their celebrity."
Rice urged jurors to use common-sense in finding that "it's more likely than not that they intentionally or unintentionally copied ‘Let’s Get It On.’"
Last week, Griffin Townsend was taken away on a stretcher to a hospital after a sudden illness caused her to collapse in court.
The jury will resume deliberations Thursday morning.
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