Since 2016, singer and songwriter, Ed Sheeran, has been facing a one hundred million dollar lawsuit against fellow songwriter, the late Ed Townsend Jr., through his heirs. In particular, the heirs claim that Ed Sheeran’s song “Thinking Out Loud” plagiarizes his song “Let’s Get it on,” co-written and performed by Marvin Gaye. According to the lawsuit, Ed Sheeran and Marvin Gaye’s songs have the “same melody, rhythms, harmonies, drums, bassline, backing chorus, tempo, and syncopation.”
“Let’s Get It On” was written in 1973 and a copyright application was filed that same year with the United States Copyright Office. The application identifies Townsend as the sole author of “Let’s Get It On.” Townsend’s heirs claim the song is one of the most famous songs in R&B and soul music history and has been ranked as the 20th greatest breakbeat of all time. Plaintiffs claim the melody, harmony, rhythm, drums, and bassline are all qualitatively important to the musical work and their combination “is the driving force of this composition.”
Ed Sheeran and non-party Amy Wadge co-authored the musical composition for “Thinking Out loud” in 2014 and recorded the first commercially released version that same year. The song has hit the number one position on national charts in eleven countries since 2014 and has been certified platinum numerous times by the Recording Industry Association of America. Further, Sheeran was nominated for a Grammy Award for Best Record, Best Performance, and Song of the Year in 2016 for “Thinking Out Loud.”
Under copyright law, any given piece of recorded music comprises two sets of rights. The first set protects the musical work, that is, the underlying musical composition, which is “the arrangement and combination of musical notes, chords, rhythms, harmonies, and lyrics.” The other right is to the sound recording, or master, which protects the actual recording of the musical composition.
To prove copyright infringement of a musical work, the accused party must either infringe, that is, be substantially similar to, the musical composition or the sound recording. In a motion for summary judgment, Plaintiffs argued Sheeran infringed the sound recording performed by Marvin Gaye. Sheeran argued the scope of Plaintiffs’ copyright is defined solely by the musical composition deposit copy that was provided to the Copyright Office upon registration. In arguing this way, the plaintiffs’ goal was to define the copyright’s scope based on the sound recording because hearing the percussion and bass increases the perception of similarity between the works. However, the court ultimately agreed the copyright’s scope was defined by the deposit copy.
In July, the New York District Judge vacated the September trial date to wait for the results in a similar copyright infringement case involving Led Zeppelin’s “Stairway to Heaven.” Led Zeppelin’s ongoing case involves alleged similarities between their famous hit and a 1968 instrumental composition by the band Spirit. The judge joked that the parties should “take the summer off” and noted that if the Led Zeppelin case goes to the Supreme Court, Ed Sheeran’s case may have to wait until 2020.
Meanwhile, another company, Structured Asset Sales, previously sought to intervene in this lawsuit and become an additional co-plaintiff. Structured Asset Sales was founded by investment banker David Pullman and securitizes future royalties to musical intellectual property and then sells those asset-backed securities to other investors. For instance, David Bowie, The Isley Brothers, and James Brown, among numerous other musicians, decided to sell off future income in exchange for money upfront.
Intervention is appropriate when a non-party claims an interest in the property or transaction that is the subject of the lawsuit and will be harmed by disposition of the action. In this way, Structured Asset Sales assets it entered into a contract with one of Ed Townsend’s children’s, Clef Michael Townsend, and therefore alleges owning a piece of “Let’s Get It On.” The District Judge nevertheless rejected the motion for intervention because it was “clearly untimely.” In so deciding, the judge pointed out that the case had been widely publicized and had been pending for nearly two years. Structured Asset Sales appealed the decision to the Second Circuit Court of Appeals and simultaneously filed a new lawsuit alleging similar claims.