A New York jury has recently ruled in Ed Sheeran’s favour following a two-week copyright infringement trial brought by the estate of the late Ed Townsend, co-writer of the Marvin Gaye hit, “Let’s Get It On”. The estate sought damages of $100 million and a permanent injunction against Sheeran.
In the proceedings, the estate argued that Sheeran’s hit, “Thinking Out Loud”, copied the “heart” of Gaye’s song, including its melody, harmony, and rhythm. The estate also claimed that Sheeran’s 2014 hit bore “striking similarities” and “overt common elements” with Gaye’s 1973 song. During the course of the two-week trial, the lawyers for the estate played a video that showed Sheeran transitioning seamlessly between the two songs and called the mash-up a “smoking gun” which demonstrated the infringement of the copyright.
In response, Sheeran’s lawyers argued that Sheeran, and co-writer Amy Wadge, “independently created” the hit, and the commonalities between “Thinking Out Loud” and “Let’s Get It On” were “basic to the toolkit of all songwriters” and “the scaffolding on which all songwriting is built”.
Ultimately, the New York jury held in favour of Sheeran, ruling that he did not infringe the copyright in “Let’s Get It On”.
Cases like this are increasingly common in the United States. This is also not the first time Sheeran has been taken to court over alleged copyright infringements. In recent years, Sheeran was sued by Sami Switch for copyright infringement in relation to Sheeran’s hit, “Shape Of You”. Sheeran was also successful in that matter, following which he was critical of “a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim”, and noted that it was damaging to the songwriting industry.
This case serves as a reminder that copyright protection is not designed to stifle creativity by limiting the use of common musical elements. However, this decision arguably raises questions about whether copyright adequately protects the intellectual property of musical artists and songwriters. Against that, there are only so many permutations of notes and chords, such that some element of similarity is not necessarily a breach of copyright.
In Australia, at least, and in accordance with the Copyright Act 1968 (Cth) (Act), copyright does not protect ideas, but rather the expression of ideas. The Act does not define musical works; however, at common law, musical works are protected. Relevantly, musical works are considered to be a particular sequence or organisation of sounds, consisting of pitch, duration, volume, and rhythm. In accordance with general copyright principles, copyright can subsist in musical works where the work is original and exists in a material form. Notably, where the musical work is a song, the lyrics are protected separately as a literary work.
If you require advice in relation to copyright or would simply like to discuss the content of this publication, please contact Iain Freeman or Millie Richmond-Scott.
