Six long years after Ed Sheeran was first hit with a copyright infringement lawsuit over his hit “Thinking Out Loud,” a federal judge denied Sheeran’s request to toss the case and ordered the case to trial.
In 2016, the estate of Ed Townsend, Marvin Gaye’s co-writer on “Let’s Get It On,” sued Sheeran over similarities between that classic and his “Thinking Out Loud”; that case is still pending.
Structured Asset Sales, which owns a one-third stake in Townsend’s copyrights, filed a similar lawsuit in 2018, and that’s the one that a judge ruled a jury trial for Thursday, Billboard reported. A trial date has not yet been set.
“The Defendants copied the ‘heart’ of ‘Let’s’ and repeated it continuously throughout ‘Thinking,’” the 2016 lawsuit claimed. “The melodic, harmonic, and rhythmic compositions of ‘Thinking’ are substantially and/or strikingly similar to the drum composition of ‘Let’s.’” (In 2019, the Townsend estate’s lawsuit was ultimately postponed by the judge because he wanted to wait for the resolution of a similar case against Led Zeppelin’s “Stairway to Heaven.”)
On Thursday, Sheeran’s lawyers argued, in their attempt to have the lawsuit thrown out, that the song elements in question were too common to be protected by copyright and that the lawsuit was “baseless,” the BBC reported.
“There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work,” Judge Louis Stanton wrote in his decision. “A work may be copyrightable even though it is entirely a compilation of unprotectable elements.”
While the Gaye family is not involved in the “Thinking Out Loud” lawsuits against Sheeran, the precedent set in their case looms over all new copyright infringement claims. Notably, the court took into account not just sheet music but studio arrangement too and ruled that “Blurred Lines” significantly aped the vibe of “Got to Give It Up,” something that had previously been beyond copyright protection.
Sheeran, who earlier this year won a plagiarism lawsuit in the U.K. over his hit “Shape of You,” last settled a lawsuit over another one of his hits, “Photograph,” for $20 million in 2017.