CASE AGAINST ED SHEERAN WILL WAIT FOR ZEPPELIN DECISION BEFORE GOING TO TRIAL
Steven T. Lowe
Following up on our July 15, 2018 article entitled “Sheeran/Gaye Lawsuit Headed To Jury Trial”: On July 2, 2019, U.S. District Court of the Southern District of New York, Louis L. Stanton, continued the jury trial scheduled for September 11, 2019, over whether Ed Sheeran’s “Thinking Out Loud” infringes Marvin Gaye’s “Let’s Get It On,” in order to find out the Marvin Gaye decision by the Ninth Circuit in a copyright infringement case involving Led Zeppelin. See, our article dated June 29, 2019, entitled “Ninth Circuit To Take A Second Look At Its Ruling Concerning The Case Against Led Zeppelin.”
Judge Stanton decided he will summon Sheeran and the Marvin Gaye heirs soon after the Ninth’s Circuit’s rehearing en banc [a session in which a case is heard before all the judges of a court rather than by a panel of three judges which is typical] in a closely watched case over whether Led Zeppelin appropriated the intro to “Stairway to Heaven.”
Judge Stanton literally stated, “Take the summer off!” after having vacated a scheduled September 11, 2019 trial date. However, the parties will probably not take the summer off because they indicated they would continue to work on pretrial motions and other particulars.
The Led Zeppelin case has been very active. In 2016, a Los Angeles jury ruled in favor of Zeppelin saying “it did not steal elements of a 1967 ballad called ‘Taurus’ by the band Spirit.” But thereafter a three-judge panel on the Ninth Circuit vacated that verdict. In the author’s opinion, that opinion was correctly decided. Now, the full Ninth Circuit is taking a look, with a decision expected sometime before the end of 2019.
“Whatever the Ninth Circuit says, it’s going to be damned educational,” Judge Stanton stated. Even though a Ninth Circuit decision is not binding on the United States District Court, Southern District of New York, Judge Stanton added, “To proceed in willful ignorance of them is folly.”
A big issue in both cases is the extent to which juries should be exposed to the actual recorded, released versions of allegedly infringing works, as opposed to making liability decisions based on more limited copyrighted sheet music registered with the Copyright Office in the 1960s, as “deposit copies.” Needless to say, Sheeran wants a ruling that Manhattan jurors can only compare “Thinking Out Loud” to the deposit copy of “Let’s Get It On.”
The Townsend heirs are represented by Keisha D. Rice, Patrick R. Frank and Katherine L. Viker of Frank & Rice PA.
Sheeran is represented by Donald Zakarin, Ilene S. Farkas and Andrew M. Goldsmith of Pryor Cashman LLP.
The case is Griffin et al. v. Sheeran et al., case number 1:17-cv-05221, in the U.S. District Court for the Southern District of New York.
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