Why Ed Sheeran Won the Thinking Out Loud Lawsuit
Earlier today, the jury in the Ed Sheeran Thinking Out Loud lawsuit returned with a verdict and found the singer-songwriter not liable for copyright infringement.
Sheeran was sued by the estate of Ed Townsend, who was a co-author of the Marvin Gaye song Let’s Get it On.
The estate had claimed that Sheeran had infringed Let’s Get it On by using elements from the song when writing Thinking Out Loud. Sheeran denied using the song, saying that he had only passing familiarity with Gaye’s song, and the similarities between the two were simply common musical elements many songs share.
To rebut that, the Townsend estate showed video of Sheeran flipping between the two tracks while performing at a concert. However, Sheeran and his attorneys argued that such a trick is easy to do between any two songs written in the same key.
In the end, the jury sided with Sheeran, ruling that he had not infringed Townsend’s work when writing Thinking Out Loud.
There is no word whether an appeal is forthcoming and there will likely be additional motions pertaining to attorneys’ fees and other elements before this case truly wraps up.
Still, the verdict represents a major victory for Sheeran, who was similarly victorious in a London trial over his song Shape of You last year. The case had been closely watched by the music industry, with many worrying that it could result in basic elements of music composition being owned by a handful of parties.
As such, it’s worth taking a moment to see why Sheeran won and how this case dovetails with other recent music copyright cases.
Why Sheeran Won
Sheeran, for his part, never made any secret that the two songs were similar. As per the concert footage, he even joked about and had fun with those similarities.
However, he argued that the similarities were basic elements from music, including the key of the song, basic chord structure and other elements. The plaintiffs, in turn, argued that, while the elements could not be protected, Sheeran had copied a collection of such elements that were unique to Let’s Get it On.
Sheeran’s team was able to point to several other songs that shared the elements in question. Though lawyers for the estate argued that some of the songs mentioned were obscure, it also did show that the chord progressions at issue did exist elsewhere.
But it may not have been musical theory questions that prompted the jurors to side with Sheeran. Before deliberation, the judge in the case instructed jurors that “independent creation is a complete defense, no matter how similar the song is.”
This meant that the Townsend estate had to show that Sheeran copied Let’s Get it On based upon a preponderance of the evidence. That is, to put it mildly, is a very high bar that the jury clearly didn’t feel the evidence reached. In short, even if the jury felt that the two songs were extremely similar, without some proof of copying, the jury had to rule in favor of Sheeran.
If an appeal does happen, that could be a point of contention for the Townsend estate. They might argue that the instructions to the jury were unfair to them. However, with copyright law, independent creation is a complete defense, though the defense has the burden of proof when making such an argument.
In the end, the jury either felt that the two works were not substantially similar, the threshold for infringement in copyright law, or that they were, but Sheeran’s work was an independent creation.
Either way, Sheeran was walking out of the courtroom with a victory.
Blurring Blurred Lines
In March 2015, in what was one of the most talked-about music copyright lawsuits, a jury awarded the estate of Marvin Gaye $7.4 million in damages after they found that Robin Thicke and Pharrell Williams had infringed the Gaye song Got to Give it Up when writing their 2013 hit Blurred Lines.
Though that amount was later reduced to $5.4 million, the verdict still sent shockwaves through the music industry. Many worried that it could forever alter the way music is composed, and the verdict became something of an exemplar for the excesses of copyright.
However, many copyright watchers, including myself, had a different take. As early as April 2015, I was already saying the verdict unimportant, and that other cases were having a much larger impact on copyright as a whole.
The reason for that was simple: The Blurred Lines verdict was heavily fact-specific. It was a verdict that was never likely to be replicated by other artists. It didn’t change any legal theory or open any new doors for other artists to use.
But other artists did try. In the years following Blurred Lines, we saw lawsuits against Katy Perry and Led Zeppelin, among others. However, in those cases, the defendants won (though Perry did lose a jury verdict, it was overturned on appeal).
By April 2020, the Blurred Lines case was largely irrelevant. Though the feared wave of lawsuits did arrive, they were being shot down, and even Forbes was saying that “Copyright Infringement is Beginning to Make Sense Again.”
However, at that time, the Townsend/Sheeran lawsuit was still out there. Originally filed in 2017, the case only made it to court last month.
When put into this context, the Townsend Estate’s lawsuit is just another music copyright infringement lawsuit that was filed in the wake of Blurred Lines meeting an ultimately predictable end.
Blurred Lines was a unique case, and those that have tried to follow in the path it supposedly carved have almost always failed. In that regard, the outcome of this case was extremely predictable.
Bottom Line
To be clear, I am not a musicologist, and, though I am an expert witness on copyright and plagiarism maters, in particular with text works, I am not a qualified expert when it comes to music. I cannot say whether Sheeran infringed or not.
However, I know someone who is such an expert and is extremely well qualified to do so.
Mere minutes before the verdict came out, musicologist and expert witness Dr. E. Michael Harrington sent me this tweet in response to my earlier 3 Count column:
It really summarizes the case perfectly.
The Townsend estate wanted to recreate the success of the Gaye estate in the Blurred Lines case. However, that case as never replicable. That is, at least not without the very specific variables that led to that verdict.
In the end, Blurred Lines was and is a fluke, an outlier. Those who follow that path, do so at their own peril. That is something the Townsend estate can likely testify to.
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