MANHATTAN (CN) — The English singer accused of plagiarizing Marvin Gaye’s monumental seductive hit “Let’s Get It On” appeared in federal court Tuesday, in a dark suit with a light blue tie, for the kickoff of the $100 million civil copyright trial.
For the next week, a jury of three men and four women from Manhattan and Westchester County will hear evidence over the musical similarities between the hit from Gaye and Gaye's co-writer, Ed Townsend, and the sentimental ballad “Thinking Out Loud" released by Ed Sheeran in 2014.
Gaye’s erotically charged 1973 song, featuring iconic sexual directives over lush orchestration bolstered by the soul singer’s own multitracked backing vocals, became the most commercially successful album of Gaye's career at Berry Gordy’s Motown label.
“Thinking Out Loud” is another powerhouse. In Britain, where the 32-year-old Sheeran is based, the ballad is regarded as one of the best-selling singles of all time. A video of the song on YouTube has more than 3.5 billion views, but that is still well behind Sheeran’s “Shape of You,” which is among the most-viewed music videos of all time with more than 5.9 billion views.
Ilene Farkas, an attorney for Sheeran at Pryor Cashman, insisted that the similarities between her client's song and "Let's Get It On" are limited to chord progressions and harmonic rhythm, what she called “basic musical building blocks that no one can own."
Farkas likened the patchwork evidence in the lawsuit against Sheeran to “audio Photoshop.”
“It’s not only misleading — it’s purposefully misleading,” she said in her opening statement to the jury Tuesday. “There’s only seven notes in scale. It’s like finding the letters A, B and C in a sentence: It’s evidence of nothing.”
Farkas insisted that the lawsuit filed by the estate of Townsend, a career singer songwriter who died in 2003, "rises and falls on two things that belong to no one.”
As the lawyer described the night in which “Thinking Out Loud" was conceived — Sheeran with his co-writer on the song, Amy Wadge, spoke late into the night about everlasting love and mortality — the mop-topped singer smiled from the defense table.
It took just two hours for the parties to settle on the jury Monday morning, though the trial in New York's Southern District has been in the making for nearly seven years.
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 in 1973.
During his opening arguments on Tuesday morning, an attorney for Townsend's estate urged the jury to look past such complexities.
“If you remember nothing else about this trial, about this case, simply remember it is about giving credit where credit is due,” said Ben Crump, a nationally renowned civil rights attorney.
Crump referred jurors to what he called a “smoking gun” in the case: footage from a 2014 concert in Germany where Sheeran transitions into “Let’s Get It On” during his performance of “Thinking Out Loud.”
“The melody never changed, the chord progression never changed, the harmony never changed, and the harmonic rhythm never changed,” Crump said. “When you have a confession in hand, generally one does not need to look elsewhere for the culprit.”
As he waxed on about the legacy of "Let's Get It On," Crump let his Florida Panhandle accent do the winking for him.
“In fact, it’s been called the perfect song for that moment," Crump said. "Some of y’all will know I mean when I say ‘that moment.'"
Senior U.S. District Judge Louis Stanton, who at 95 is the oldest judge in the Southern District, is presiding over the trial. If the jury finds Sheeran liable for infringement, the same panel will reconvene for a second phase of the trial to determine the punishment.
Shortly before the Townsend estate sued Sheeran in 2016, a federal jury in California awarded Gaye’s children a landmark multimillion judgment against “Blurred Lines” creators Robin Thicke and Pharrell Williams.
The Ninth Circuit upheld that judgment early last year, finding that Thicke and Williams infringed the copyright to Gaye’s falsetto-sung disco groove “Got to Give It Up.”Follow @jruss_jruss
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