2016 had been a pretty good year for English singer-songwriter Ed Sheeran up until lately and most of that success had to do with his popular single, “Thinking Out Loud.” The song, reportedly a late addition to Sheeran’s x (pronounced “multiply”) album, earned Sheeran two Grammy Awards this year both for Song of the Year as well as Best Pop Solo Performance. Last October, Billboard was reporting that “Thinking Out Loud” was the first song to reach 500 million streams on the online music service Spotify. Spotify also declared the song to be the most popular first dance song at weddings around the world after analyzing “first dance” playlists made by Spotify users.
However, the song hasn’t enjoyed a universally positive reception. On Tuesday, August 9th, Sheeran was named as a defendant in a copyright lawsuit filed by three heirs of American singer-songwriter Lee Townsend. Townsend, who passed away in 2003, was Marvin Gaye’s co-writer for his famous song “Let’s Get It On.” The suit, which also lists among the defendants Warner Music Group, Atlantic Records UK, Sony/ATV Music Publishing and Amy Wadge, Sheeran’s co-writer on “Thinking Out Loud,” alleges that the song “copied the heart” of “Let’s Get It On” and repeated copyright infringing melodic, harmonic and rhythmic compositions throughout the song. The case, Griffin et al v. Sheeran et al, has been filed in the U.S. District Court for the Southern District of New York (S.D.N.Y.).
Copyright law in the United States provides for the protection of original works of authorship, including musical compositions. The holder of a copyright on a musical composition and accompanying words has the exclusive right to reproducing the work, performing the work publicly and creating derivatives of the work, among other rights. Since January 1st, 1978, copyright protections are automatically extended to a work when it is fixed in a recorded medium for the first time. “Let’s Get It On” was released in 1973 and would not have been protected under the 1976 Copyright Act, which became effective on January 1, 1978. Instead, “Let’s Get It On” would be protected under an earlier version of the Copyright Act.
At least one legal analyst believes that the copyright infringement claim brought by the Townsend heirs is frivolous. “In my opinion, this is ‘Stairway to Heaven,’ Part II,” writes J. Michael Keyes, partner at the international law firm Dorsey & Whitney. “I am dubious of this claim of infringement. While the Plaintiffs claim Sheeran copied the ‘heart’ of ‘Let’s Get It On,’ the Complaint ignores the fact that the rhythm and chord progressions are pretty basic, common elements. No composer should have a monopoly on these musical ideas.”
Keyes’ comments reference a copyright infringement case involving a song created by British rock band Led Zeppelin, considered by many to be one of the most popular rock songs of all time. In late June, a jury backed Led Zeppelin’s claim that the iconic acoustic guitar intro to “Stairway to Heaven” was not lifted directly from “Taurus,” a song released by the American rock band Spirit in 1968; “Stairway to Heaven” was released three years later and after both Led Zeppelin and Spirit played a Birmingham club on the same night. Media reports indicate that Led Zeppelin’s legal team argued that the chord progression in the infringement claim had been in common use for more than 300 years. The jury was presented with a performance of both compositions by a music expert as the copyright infringement claim was made upon the sheet music and not the recording of the songs. The case, Skidmore v. Led Zeppelin, was decided in the U.S. District Court for the Central District of California (C.D. Cal.).
“This type of case underscores what is broken with our copyright system when it comes to music infringement claims,” Keyes said of the Townsend lawsuit. “Short phrases and sentences are not protected by copyright, yet a few chords and a basic rhythmic beat can be cause for a claim seeking millions. It would be nice to see some harmonization between various strands of copyright law.”
This is not Sheeran’s first experience as a target of a copyright infringement suit. In June of this year, HaloSongs, Inc. et al v. Ed Sheeran et al was filed in C.D. Cal. The suit alleges that Sheeran’s song “Photograph,” also found on his x album, is about halfway to a note-for-note copy of “Amazing,” a song written by co-plaintiffs Martin Harrington and Thomas Leonard. The complaint says that the infringement took place on a “breathtaking scale” and argued that the unusual level of strikingly similar copying” led to a top Billboard spot for “Photograph,” which had sold 3.5 million copies and was certified 2x Multi Platinum by the Recording Industry Association of America (RIAA). The lawsuit seeks $20 million in damages from Sheeran and other defendants.
The “Thinking Out Loud” case is also not the only recent instance of allegations of copyright infringement on a song originally released by Marvin Gaye. In another jury decision in C.D. Cal., the children of Marvin Gaye were awarded $7.4 million after alleging that Gaye’s 1977 hit “Got To Give it Up” was copied by “Blurred Lines,” a popular song written by Pharrell Williams and recorded by Williams, Robin Thicke and hip-hop artist T.I. which had sold more than 7.3 million copies in the United States. This April, Judge John A. Kronstadt declined to award Gaye’s heirs a $3.5 million award they had requested to pay for their attorney’s fees after the money award in the case was reduced to $5.3 million plus half of all of “Blurred Lines” future royalties.
As an overview of copyright infringement actions published by the American Bar Association notes, “Copyright infringement is a deceptively complex cause of action.” To earn a positive result, a legal team must prove that the plaintiff’s work was actually copied by the defendant and that the copying was an improper appropriation of the plaintiff’s work. Not only must similarities between the plaintiff’s and defendant’s work must exist but it must be proved that the defendant had access, or reasonable opportunity to observe, the plaintiff’s work. In the “Blurred Lines” case, Williams had testified that he was inspired by Marvin Gaye’s work so the infringement was easier to prove. In the “Stairway to Heaven” case, the relative obscurity of Spirit and its instrumental track “Taurus” made it more difficult to prove access. The popularity of “Let’s Get It On,” which has been certified Platinum by the RIAA, will almost certain prove to be an important issue raised when proving access in the Townsend suit.