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Judge declines to dismiss new Ed Sheeran song-theft litigation that relies on newly registered Marvin Gaye copyright

By Chris Cooke | Published on Wednesday 31 March 2021

A US judge has declined to dismiss the third lawsuit that alleges Ed Sheeran ripped off Marvin Gaye when writing his 2014 song ‘Thinking Out Loud’. This third round of litigation is very similar to the other two lawsuits linked to this dispute, although technically Sheeran is now accused of infringing Gaye’s ‘Let’s Get It On’ as published in 2020, rather than 1973.

A quick recap. Back in 2016 the estate of ‘Let’s Get It On’ co-writer Ed Townsend sued Sheeran through the US courts over allegations that he had ripped off the “melody, harmony and rhythm compositions” of the Gaye classic on ‘Thinking Out Loud’. A company called Structured Asset Sale then filed its own litigation over the same allegations on the basis that it also has a stake in the ‘Let’s Get It On’ copyright.

While both those cases were going through the motions, we got the headline-grabbing ruling in the Ninth Circuit appeals court regarding the ‘Stairway To Heaven’ song-theft case. That dispute centred on a copyright law technicality that is also relevant to the ‘Thinking Out Loud’ litigation. And that’s the rule that says that songs are only protected by copyright in the form that they were filed with the US Copyright Office.

For cases involving older songs – like those relating to ‘Stairway To Heaven’ and ‘Thinking Out Loud’ – this technicality has sometimes proven problematic. Prior to a change in US copyright law in the 1970s, only sheet music could be deposited with the Copyright Office. This means those older songs are only protected as presented in that sheet music. Any additions made to the song in the studio when it was first recorded are therefore not protected.

This is rather annoying if you own the copyright in an older song which a newer song has ripped off, but the ripped off elements don’t actually appear in the sheet music, even though they were very much there in the original recording.

With the Ninth Circuit ruling in the ‘Stairway To Heaven’ case confirming that courts must respect this rule in song-theft disputes involving old songs, the judge in the first round of ‘Thinking Out Loud’ litigation said that he was now unlikely to allow the Townsend side to play any recordings of ‘Let’s Get It On’ to the jury once the dispute gets to court. Because jurors must only consider the Gaye song as shown in the original sheet music.

That will negatively impact the Townsend estate side in that first lawsuit, and subsequently Structured Asset Sale in its separate but similar litigation. Which is why Structured Asset Sale decided to re-file ‘Thinking Out Loud’ with the Copyright Office last year, this time submitting the original recording as the fixation of the work. It then filed a new lawsuit claiming that Sheeran had infringed the newly registered version of ‘Let’s Get It On’, hoping that its second lawsuit could avoid the negative impact of the ‘only protected as filed’ technicality.

Sheeran and his publisher Sony then tried to have the new lawsuit dismissed. First on the grounds that it was duplicative of the earlier lawsuit. And secondly based on the argument that Structured Asset Sale – which acquired its stake in ‘Let’s Get It On’ from an heir of Townsend – wasn’t authorised to obtain the new registration in relation to song, and that “the lack of authorisation defeats any claim of copyright ownership”.

However, the judge overseeing the new case declined to dismiss the lawsuit at this stage based on either of those arguments. She wrote: “The court concludes that the 2020 registration sufficiently alleges plaintiff’s beneficial ownership in that copyright for purposes of this motion, and that the registration’s incorporation of new musical elements precludes a finding that plaintiff’s two suits are duplicative”.

That said, the judge did then say that there was enough similarity between this lawsuit and the previous lawsuits to justifying pausing the new litigation while the original cases, being overseen by judge Louis Stanton, work through to their conclusions. “In light of the significant overlap between the two actions, the court stays the instant suit pending resolution of the action before judge Stanton”, she wrote.