MANHATTAN (CN) – Any similarities between the Ed Sheeran hit “Thinking Out Loud” and Marvin Gaye’s classic “Let’s Get It On” are not actionable, attorneys for the UK star told a federal judge in New York on Friday.
Sheeran is challenging a federal complaint filed against him in 2016 by the family of composer Ed Townsend, who owns a 22 percent share in the copyrights to the sheet music for the song he co-wrote in 1973.
Representing Sheeran in court Friday, Pryor Cashman attorneys Donald Zakarin and Ilene Farkas emphasized that the heart of any infringement claim relies on the deposit copy that was registered, which is the sheet music to “Let’s Get It On,” not the 1973 Motown recording of Marvin Gaye’s arrangement of the song.
They say that any musical embellishments on Gaye’s recording of “Let’s Get It On,” including the percussion, bass line and any vocal parts Gaye added, are not covered by the sheet music copyright.
But Keisha Rice, representing Townsend for the Tallahassee firm Frank & Rice, argued that sound recordings are “valid interpretations” of the deposit copy of sheet music.
Rice appeared at the hearing this afternoon via audio only, firing back at Sheeran’s attorneys that, while percussion may not be covered, syncopated rhythms of the song written in to Townsend’s sheet music would be protectable.
Rice also claimed that Sheeran admitted in a deposition that the lowest notes of the guitar line make up the bass line.
Neither song rings a bell for the presiding judge, U.S. District Judge Richard Sullivan, who was appointed to the bench in 2007 by then-President George W. Bush.
“We’ll hear what the experts have to about the sounds,” the 54-year-old judge said. “I don’t care what they have to say about the law,” he added.
More than once this morning, Sullivan said he was not interested in hearing the opinions from expert musicologists about which parts of the songs are or are not protectable. Sullivan said it is the role of the judge, not the experts, to distinguish protectablilty copyright.
“I think it’s about the sheet music,” Sullivan said in court today, after Rice implored the judge to listen to audio recordings and read internet comments that intimate strong similarities between the two songs.
Sullivan set a July 27 deadline for Sheeran’s attorneys to file their motion for summary judgment.
Marvin Gaye’s seductive 1973 recording of “Let’s Get It On” was accompanied by The Funk Brothers, an in-house group of musicians for the Motown label known who also backed Gaye on his earlier hit, “What’s Going On.”
“Thinkng Out Loud” has been at the top of the charts in both the United States and United Kingdom since it came out in 2014, and it is regarded as one of the best-selling singles of all time in Britain. It nabbed the Song of the Year award during this year’s Grammy Awards.
At a concert in Germany in 2014, Sheeran segued into “Let’s Get It On” during a performance of “Thinking Out Loud.”
Sheeran’s “Thinking Out Loud” video has more than 2.3 billion views on YouTube; his song “Shape of You” is the one the most-viewed music videos of all time, with more than 3.5 billion views.
On Thursday, a separate federal lawsuit was filed in Manhattan repeating the claims against Sheeran over “Thinking Out Loud” by Structured Asset Sales, a group who also own a share of the copyright to “Let’s Get It On.’
Structured Asset Sales is represented in their suit by attorney Hillel Parness, a former head of litigation at Warner Music,
The Los Angeles-based company, which was founded by investment banker David Pullman, securitize future royalties to musical intellectual property and then sell them as asset-backed securities to other investors.
Parness did not appear at Friday’s hearing.
Gaye’s family also has a history of suing artists for stealing composition or harmonies from his songs.
In 2015, they won a landmark judgment in California against Robin Thicke and Pharrell Williams over the song “Blurred Lines,” for infringing the copyright to Gaye’s “Got to Give It Up.” Gaye’s family was awarded more than $7 million in damages.
The Gaye family also sued Thicke over the song “Love After War,” which they claimed infringed the copyright for Gaye’s song “After the Dance.” But the jury let Thicke and his ex-wife and co-creator Paula Patton off the hook on that count, finding that “Love After War” did not infringe on Gaye’s 1976 single.
Townsend died in 2003. His second wife, Cherrigale, and two of his daughters are plaintiffs in the suit.
Their complaint also named as defendants Jake Gosling and Amy Wadge, who are credited with co-writing “Thinking Out Loud,” as well as Sony/ATV Music Publishing, Warner Music Group, BDi Music, Asylum Records, Atlantic Records, and Bucks Music Group.