Since 2016, pop singer Ed Sheeran has been fighting claims that his 2014 hit “Thinking Out Loud” copied the chords, rhythm, and melody from Marvin Gaye’s 1973 classic “Let’s Get It On.” The plaintiffs were relatives of Ed Townsend, the co-writer of “Let’s Get It On.”
In the most recent case, in the U.S. District Court in the Southern District of New York, the plaintiffs at trial played a concert video where Sheeran performed a “mashup” of “Let’s Get It On” and “Thinking Out Loud.” A mashup is when two or more songs are blended together, often by toggling the melodies back and forth. Plaintiffs called the recording of Sheeran’s mashup a “smoking gun.” Mashups have been used before as evidence in copyright trials, such as in 2015, when Marvin Gaye’s estate won a case alleging that the song “Blurred Lines” infringed on Gaye’s 1977 song “Got to Give It Up”. But here, the mashup did not carry the day. Sheeran testified that mashups are common and prove nothing.
Sheeran testified that he often blends “Thinking Out Loud” with other hits because pop songs are often built around the same three or four chords. To prove his point, Sheeran brought in an expert musicologist who showed that “Let’s Get It On” shared the same common four-chord groove as many other songs, including the Seekers’ 1967 song “Georgy Girl.” Sheeran further made the point that if he had actually copied “Let’s Get It On”, “he would be an idiot to stand on a stage and do [the ‘Let’s Get It On’ mashup] in front of 20,000 people.”
But the pièce de résistance was when Sheeran picked up his guitar and started playing “Thinking Out Loud” for the jury. This serenade for the jury of what is a very beautiful song (i.e. “Thinking Out Loud”) may have won him new fans and is considered one of the main reasons he won the trial.
Performing music during trial is a tactic that many artists have relied on during copyright infringement trials. Artists such as John Fogerty and Michael Jackson both won copyright trials after they performed their songs for the jury. However, Robert Thicke and Pharrell Williams were dealt a $5 million dollar loss after Thicke played the piano in the 2015 copyright case concerning his song “Blurred Lines.”
Author’s Note: The defining elements of a song are the melody and lyrics. Melody includes how the notes that the lead vocalist sings intertwine with the chords and rhythm. While there may have been similarities in the “chord progressions” between the two songs, the melody and lyrics between the two songs at issue were decidedly different. The result was a good one.
The Townsend heirs were represented by Patrick R. Frank, Keisha D. Rice and Katherine L. Viker of Frank & Rice PA and Ben Crump of Ben Crump Law PLLC.
Sheeran, Atlantic and Sony were represented by Donald S. Zakarin, Ilene S. Farkas, Andrew M. Goldsmith and Brian M. Maida of Pryor Cashman LLP.
The case is Kathryn Griffin et al. v. Sheeran, case number 1:17-cv-05221, in the U.S. District Court for the Southern District of New York.
* Lowe & Associates (“The Firm”) is a boutique entertainment and business law firm located in Beverly Hills, California. The firm has extensive experience handling cases involving copyright law, having provided top-quality legal services to its clients since 1991. The Firm is recognized for its many achievements, including successfully litigating many high-profile cases.