Thinking out Loud…about Copyright Infringement

January 14, 2019

A lawsuit against popular singer and songwriter Ed Sheeran gained steam after a judge denied Sheeran’s motion for summary judgment earlier this month. In the case, Griffin v. Sheeran, heirs of Edward  Townsend, who co-wrote the song “Let’s Get It On” with singer Marvin Gaye, allege that the musical composition of Sheeran’s song, “Thinking Out Loud” infringes on their copyright of the song “Let’s Get it On”.  Sheeran co-wrote “Thinking Out Loud” with Amy Wadge, who was not named as a party in this action.

Sheeran moved for summary judgment arguing that the deposit copy, not the sound recording, of “Let’s Get It On” defines the boundaries of the copyright; the two works are not substantially similar; the alleged similarities between the two songs are “unprotectable and commonplace elements”; and plaintiff does not have standing to sue. The court declined to opine, at this point in the case, whether the deposit copy or the sound recording defines the parameters of the copyright.

Next, the court addressed commonplace musical elements. These elements are not subject to copyright protection because they are no longer considered original and are part of the public domain. Examples of commonplace musical elements are: key, meter, tempo, common song structures, common chord progressions, common melodies, and common percussive rhythms. The court denied summary judgment on this point, citing Ulloa v. Universal Music & Distribution Corp., for the proposition that where experts disagree on the originality of musical elements, summary judgment is improper.

Third, the court set forth the “ordinary observer” test for determining substantial similarity. Quoting from Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), the court said, “In applying the so-called ‘ordinary observer test’, we ask whether ‘an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work’”.  Experts for both parties offered opinions on the alleged similarities between the two works and the court determined that when construing the evidence in the light most favorable to plaintiffs, a jury could reasonably find substantial similarities in protectable elements between “Let’s Get It On” and “Thinking Out Loud”.

Finally, the defense asserted that Kathryn Griffin did not have standing to bring the suit because, they allege, she is not a rightful owner of the copyright. While a California probate court determined Griffin was Townsend’s heir and therefore a beneficiary of music royalties, the defense maintains that Griffin failed to disclose that even though she is the biological daughter of Townsend, she had been adopted and Cal. Prob. Code § 6451(a) severs inheritance rights. The court acknowledged that while the record doesn’t provide any information on whether or not the probate court was aware of this information, it must give full faith and credit to the California decision. Interestingly, a footnote to the opinion explains that the petition to administer Townsend’s estate does not mention the adoption of Griffin, but it does contain a statement of the other heirs acknowledging Griffin as a child and heir of Townsend and request that the court confirm Griffin as the child of Townsend for inheritance purposes.

Sheeran’s “Thinking Out Loud” reached #2 on Billboard’s Hot 100 in February 2015, while Gaye’s “Let’s Get It On” made it to #1 in September 1973.1 Controversy over Sheeran’s music is not new. He was previously the subject of a copyright infringement lawsuit for his song “Photograph”, which settled in April 20172. And following the release of his song “Shape of You”, song writing credits were given to Kandi Burruss, Tameka Cottle, and Kevin Briggs in March 2017, who co-wrote the song “No Scrubs” performed by TLC.3

1 REUTERS/Jonathan Stempel: U.S. Judge orders Ed Sheeran to face Marvin Gaye plagiarism lawsuit

AP Online: Copyright lawsuit over Ed Sheeran hit ‘Photograph’ settled

3 Quartz/Dan Kopf: The songwriters of TLC’s “No Scrubs” now have a credit on 2017’s monster hit, “Shape of You”

Image Source: REUTERS/Lucas Jackson

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