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Ed Sheeran copyright case postponed pending Led Zeppelin ruling

By Chris Cooke | Published on Wednesday 3 July 2019

The ongoing Ed v Ed copyright case – the Eds being Sheeran and Townsend – continues to on go. However, a jury trial planned for September has now been postponed pending the outcome of another big song-theft dispute. That being the ‘Stairway To Heaven’ litigation.

Sheeran was sued in 2016 over allegations that his 2014 hit ‘Thinking Out Loud’ lifted “melody, harmony and rhythm compositions” from the Marvin Gaye song ‘Let’s Get It On’. The lawsuit was filed by the estate of Townsend, who co-wrote the 1973 Gaye classic.

Although the case centring on a Gaye song meant that there were immediate parallels with perhaps the most famous plagiarism case of recent times – that being the ‘Blurred Lines’ litigation – the copyright battle over Led Zeppelin’s ‘Stairway’ has proven more influential.

A few months before the Townsend family went legal, Led Zeppelin had successfully defeated the lawsuit that claimed ‘Stairway To Heaven’ had ripped off an earlier song by American artist and songwriter Randy Wolfe. Certain elements of the ‘Stairway’ ruling arguably aided the Sheeran defence in the ‘Thinking Out Loud’ action.

Then last year America’s Ninth Circuit appeals court overturned that ‘Stairway’ ruling, concluding that the judge in the original case had made errors, especially in the way he instructed the jurors. In the wake of that ruling, both sides in the ‘Thinking Out Loud’ dispute filed new papers with the court explaining why conclusions reached by the ‘Stairway’ judges aided their arguments in the new dispute.

The ‘Stairway’ case was due to be reheard at a district court level, but then last month the Ninth Circuit announced that it would rehear the case itself, this time ‘en banc’, which means more judges take part. Cases are only usually granted an en banc hearing where the court reckons a dispute requires detailed consideration of important matters of law.

The Ninth Circuit appeals court covers the Western states of America, while the ‘Thinking Out Loud’ litigation was filed in New York. Which means that the judge who is overseeing the Ed v Ed case – that being Louis L Stanton – isn’t actually bound by any precedents set in the upcoming ‘Stairway’ en banc hearing.

However, given those appeal judges will be considering some copyright technicalities that are very relevant to the ‘Thinking Out Loud’ action, Stanton has concluded that to proceed with the Eds case in “wilful ignorance” of their conclusions would be “folly”.

According to Law360, the New York judge mused that “whatever the Ninth Circuit says, it’s going to be damned educational”. And, to that end, he told lawyers respectively working for both Eds to take the summer off, saying he’d regroup everyone as soon as there was a ruling in the ‘Stairway’ case.

Of course, once the Ninth Circuit has ruled on the ‘Stairway’ dispute, lawyers for Led Zep or the Wolfe estate might then try to take that case to the US Supreme Court.

Stanton acknowledged that that was a possible outcome and, if it happens, said he might ultimately postpone the Eds case further, because any precedents set in a Supreme Court ruling would be binding on his court too. Which could mean that this ongoing ‘Thinking Out Loud’ litigation will still be going on for some time yet.