Recently, a Manhattan federal jury panel was treated to a brief in-person performance by Grammy-winning artist Ed Sheeran. Pretty lucky for them. I’m not convinced Mr. Sheeran shared the same sentiments at that moment.
Introduction. On July 11, 2017, the heirs of deceased songwriter Ed Townsend brought a lawsuit against Sheeran (and others) in the United States District Court for the Southern District of New York (Hon. Louis J. Stanton), alleging that Sheeran’s hit song Thinking Out Loud infringed upon Marvin Gaye’s 1973 classic Let’s Get It On—specifically Mr. Townsend’s contributions to the song. Mr. Townsend co-wrote Let’s Get It On’s lyrics and created its musical composition. Plaintiffs alleged that “[t]he harmonic progressions, melodic and rhymes elements, as observed in [Let’s Get It On] made [it] one of the most well-known and instantly recognizable songs in R&B history.” “These elements,” as alleged by Plaintiffs, “are the ‘heart’ or qualitatively, the most important elements of the song.” Thus, Plaintiffs alleged that “[Sheeran] copied the ‘heart’ of [Let’s Get It On] and repeated it continuously throughout [Thinking Out Loud]” and further stated that “[t]he melodic, harmonic, and rhythmic compositions of [Thinking Out Loud] are substantially and/or strikingly similar to the drum composition from [Let’s Get It on].”
A Reminder That Litigation Can Be Lengthy. In late April 2023, nearly seven years after Plaintiffs commenced their lawsuit, it was finally time for trial. Before that, the parties endured extensive pre-trial practice, which, amongst other things, led to prospective jurors being struck from the jury panel because their children “loved Ed Sheeran,” because they thought Thinking Out Loud was “Perfect,” and because it was a potential juror’s wedding song. The COVID-19 pandemic also delayed the case. Most notably, however, the case paused between the end of 2019 and early 2020 pending a March 9, 2020 Decision by the United States Court of Appeals for the Ninth Circuit in a copyright lawsuit concerning Led Zeppelin’s Stairway to Heaven.
Distinguishing The Deposit Copy From The Sound Recording. The Ninth Circuit rejected an argument that jurors should have been allowed to listen to or consider the recorded version of the purportedly infringed-upon 1968 song—Spirit. The Ninth Circuit reasoned that “[b]ecause the 1909 Copyright Act did not offer protection for sound recordings, [the plaintiff’s] one-page deposit copy defined the scope of the copyright at issue.”
On March 24, 2020, Judge Stanton limited the scope of the Townsend heir’s claims to Townsend’s registered “deposit copy.” Townsend’s application for registration of the musical composition for Let’s Get It On consisted of the sheet music he authored. Thus, Judge Stanton found that the “Deposit Copy is the sole definition of the elements included in the protection of copyright, which does not include other embellishments, even if they were added by Townsend himself - because they have not undergone the copyright process.” As noted by the Copyright Office, “a registration for a work of authorship only covers the material that is included in the deposit copy(ies)” and “does not cover authorship that does not appear in the deposit copy(ies), even if the applicant expressly claims that authorship in the application.” Judge Stanton also found that the Let’s Get It On sound recording “contains many elements: percussion/drums, bass-guitar, guitars, Gaye’s vocal performances, horns, flutes, etc., which do not appear in the simple melody of the Deposit Copy. These additional elements - at least some of which appear in [Thinking Out Loud] in more or less similar form - are not protected by copyright, because they are not in the Deposit Copy.” Accordingly, the Court held that Gaye’s sound recording was inadmissible “in any way which might confuse the jury into thinking it represents what is protected by copyright.”
Back to the Trial. Following Judge Stanton’s March 2020 Order, jurors were only allowed to listen to a computer-generated version of Let’s Get It On, which replicated only Townsend’s Deposit Copy. Plaintiffs also introduced testimony from its expert witness, who stated that Let’s Get It On and Thinking Out Loud featured nearly identical chord progressions and rhythmic anticipation, as well as similar melodies. Plaintiff’s expert believed that 70% of Thinking Out Loud is attributable to Let’s Get It On.
Plaintiffs also introduced a “mashup” performance where Sheeran performed both songs in tandem. Sheeran stated that it was not unusual for him to mash up songs at his shows because many songs feature the same three or four chords. He also stated that “if [he] had done what [Plaintiffs are] accusing [him] of doing, [he’d] be an idiot to stand on stage and [perform the mashup] infront of 20,000 people.”
Sheeran also introduced four other songs featuring the same four-chord progression used in Let’s Get It On. Sheeran also vehemently rebuffed Plaintiff’s expert’s testimony—even pulling out a guitar to show the different treatment of his lyrics over each song’s chord progressions. He also noted that “people don’t own chords.”
The Jurors Agreed With Sheeran. On May 4, 2023, the seven-member jury unanimously found that Sheeran established, by a preponderance of the evidence, that he independently created Thinking Out Loud and thus did not infringe on the copyright of Let’s Get It On.
Takeaway. As noted above, an analysis concerning whether one’s music was infringed upon may be limited to the components of the music that are registered with the Copyright Office (specifically, musical works protected by the Copyright Act of 1909—works created between July 1909 and January 1978) to the deposit copy. A deposit copy is a copy of the work which represents the entire work that’s registered.