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Ed Sheeran lawyers want video of his mash-up performances excluded from Thinking Out Loud song theft trial

By Chris Cooke | Published on Wednesday 8 February 2023

No high profile song-theft legal battle is complete without a YouTube video mashing together the two songs that are part of the dispute. But should that mash-up be shown in court? And what if the alleged song thief made the mash-up? Ed Sheeran’s legal team would like it to be known that mash-ups of this kind have no place in a courtroom, especially if they were made by Ed Sheeran.

So, yes, while last year’s big song theft legal battle involving Sheeran was in the UK courts, this year we’re back in the American system with the long running litigation over his song ‘Thinking Out Loud’. On that track, Sheeran is accused of ripping off Marvin Gaye’s ‘Let’s Get It On’ by the family of the earlier song’s co-writer Ed Townsend.

With the UK dispute – where Sheeran was accused of borrowing a key element of ‘Shape Of You’ from earlier Sami Chokri track ‘Oh Why’ – a central component of the case was whether or not Sheeran and his songwriting collaborators had even been aware of Chokri’s record before writing their song.

The Chokri side ultimately failed to demonstrate that they had, with Sheeran et al claiming that they hadn’t actually heard ‘Oh Why’ until after the song theft lawsuit was filed.

With the US litigation, however, it can probably be taken as read that Sheeran was aware of ‘Let’s Get It On’ before writing ‘Thinking Out Loud’ and prior to any legal filing. Not least because there’s a YouTube video of him playing his song at a concert in 2014 and inserting a bit of Gaye’s song into the middle of the performance.

Perhaps unsurprisingly, lawyers working for Townsend want to show that YouTube video to the jury when this particular song theft legal battle finally gets to trial later this year. However, the Sheeran side has formally objected to that plan.

Given that whether or not Sheeran had access to ‘Let’s Get It On’ before writing ‘Thinking Out Loud’ is not really a consideration here, the focus of this dispute is whether the elements shared by the two songs are too short, generic and commonplace to be protected by copyright in isolation. This is often the focus of song theft cases, especially when someone is accused of ripping off a famous older hit.

Indeed, it was the focus of the big old ‘Blurred Lines’ song theft case in which Robin Thicke and Pharrell Williams were also accused of ripping off one of Gaye’s songs. The Gaye estate – who are not involved in the ‘Thinking Out Loud’ litigation – were successful in the ‘Blurred Lines’ legal battle, of course.

However, in subsequent high profile cases, the US courts have been very cautious about extending copyright protection to short, generic and commonplace musical segments that a new song may have in common with an old song.

Obviously, the Sheeran side is hoping that cautious trend will go in their favour. Although at first instance the case will go before a jury, who are prone to be somewhat less cautious. And a video of Sheeran himself mashing together his song with Gaye’s song is probably the kind of thing that could swing a jury in a dispute like this.

This is why Sheeran’s lawyers have asked the judge to not allow that video to be played in court. Although they have legal arguments to back up that request other than just “it’ll help the other side win”. Showing the video would mislead the jury, they claim, because it implies Sheeran is actively copying the earlier song, when he is just acknowledging that his and Gaye’s song share the same musical building blocks.

As do many other songs, Sheeran’s legal team told the court earlier this week, according to Billboard. “There are dozens if not hundreds of songs that pre-date and post-date ‘Let’s Get It On’ utilising the same or similar chord progression”, they wrote. “These medleys are irrelevant to any issue in the case and would be misleading [and] confuse the jury”.

The lawyers also add that allowing the video to be shown could have a wider impact on the music industry, discouraging artists from performing medleys of this kind at their shows.

However, Townsend’s legal team remain hopeful that the judge will ignore these arguments and allow them to show the video at trial, given the very same judge previously noted – when refusing to dismiss the lawsuit – that the video could impress a jury. We shall see.