MANHATTAN (CN) – Finding Ed Sheeran’s “Thinking Out Loud” similar enough to the classic “Let’s Get It On,” a federal judge ruled Thursday that the copyright case should be decided by a jury.
The family of composer Ed Townsend, who co-wrote “Let’s Get It On” with Marvin Gaye in 1973, brought the 2016 suit here in New York.
Though the Townsends own a 22 percent share in the copyrights to the original sheet music, Sheeran’s defense hinges on distinguishing the sheet music from how Gaye arranged “Let’s Get It On” in the 1973 Motown recording.
Sheeran’s attorneys at Pryor Cashman, Donald Zakarin and Ilene Farkas, argued that the heart of any infringement claim relies on the deposit copy that was registered. Hoping to kill the suit at summary judgment, they said 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.
Such arguments failed Thursday, however, to sway U.S. District Judge Louis Stanton.
“Hearing the percussion and bass increases the perception of similarity between the works” Stanton wrote. “Expert musicologists may opine on probative or objective similarities between the works and they can provide guidance by translating musical notation and musical concepts into plain English, but they may not opine that a defendant’s work is substantially similar to the plaintiff’s work.”
Stanton found it improper at the summary-judgment stage to settle the question of whether the “I – iii-IV- V” chord progression and harmonic rhythm present in both compositions demonstrate “sufficient originality and creativity to warrant copyright protection.”
“Regardless of whether the deposit copy or sound recording of ‘Let’s Get It On’ defines the scope of the composition’s copyright, material facts are in dispute,” the 20-page opinion states, “whether the harmony and harmonic rhythm were commonplace prior to ‘Let’s Get It On,’ and whether numerous musical elements in the two works are substantially similar and so uncommon that an ordinary observer would recognize ‘Thinking Out Loud’ as having been appropriated from ‘Let’s Get It On.’”
Sheeran’s attorneys pointed toward other elements – song structure, lyrics and tone – to highlight the difference in “total concept and feel” between the works, contending that that the total concept and feel of the two works is different. Whereas “Thinking Out Loud” is characterized by somber, melancholic tones, addressing long-lasting romantic love, they said called Gaye’s song “a sexual anthem that radiates positive emotions and encourages the listener to ‘get it on.'”
“Thinking Out Loud” has been a chart-topping hit in both the United States and the United Kingdom, where Sheeran is based. In Britain, the 2014 ballad is regarded as one of the best-selling singles of all time. A video of the song on YouTube has more than 2.3 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 3.5 billion views.
Sheeran played up the connection to Gaye’s song at a concert in Germany in 2014 when he segued into “Let’s Get It On” during a performance of “Thinking Out Loud.”
Shortly before the Townsend estate sued Sheeran, a federal jury in California awarded a multimillion judgment to three of Gaye’s children in their suit over 2013 “Blurred Lines.” The Ninth Circuit upheld that judgment early last year, finding that the musicians Robin Thicke and Pharrell Williams infringed the copyright to Gaye’s “Got to Give It Up.”
Last June, Sheeran was hit with a separate suit over “Thinking Out Loud” by Structured Asset Sales, a group that owns a share of the copyright to “Let’s Get It On.”
Discovery in the Structured Asset Sales case, which Stanton is also presiding over, was stayed pending the resolution of the motion for summary judgment in the Townsend case.
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.