Photo Credit: Amazon Music
A federal judge has ruled that a years-old copyright infringement lawsuit against Ed Sheeran, centering on “Thinking Out Loud” (2014), will proceed to trial despite the 31-year-old’s motion for dismissal.
This latest twist in the courtroom confrontation – which represents one of many copyright suits that Sheeran has faced to date – just recently came to light in a 19-page-long order. The underlying legal battle initiated in 2018, when a company called Structured Asset Sales, headed by one David Pullman (of “Bowie Bonds” fame), accused Sheeran of infringing upon Marvin Gaye’s “Let’s Get It On” (1973).
Structured Asset Sales disclosed in the original complaint that it owned one-third of “Let’s Get It On,” elements of which, referring mainly to chord progression, are said to have been lifted to create “Thinking Out Loud.”
The latter track has racked up a staggering 2.08 billion plays on Spotify, and separately, the final component of the Marvin Gaye estate’s much-publicized “Blurred Lines” infringement action only drew to a close in February of 2021.
Back to the newest development in Structured Asset Sales’ copyright complaint against Ed Sheeran, though, the Halifax, West Yorkshire-born artist had been seeking a summary judgement dismissal of the infringement claim, which the litigants agreed involves elements (related to the aforementioned chord progression) that are “commonplace and unprotectable” when considered on their own.
“The law does not support Sheeran’s contention that the combination of LGO’s chord progression and harmonic rhythm is insufficiently original to warrant it copyrightable,” wrote Judge Louis L. Stanton, who will celebrate his 95th birthday tomorrow. “There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work.
“Although the two musical compositions are not identical, a jury could find that the overlap between the songs’ combination of chord progression and harmonic rhythm is very close. Accordingly, questions remain that are not resolvable by summary judgment, but require trial,” the court drove home before describing in detail all manner of the works’ technical components.
Ed Sheeran and his counsel had also sought summary judgement to dismiss the plaintiff’s “claim that the damages award can include touring profits,” whereas the plaintiff had sought summary judgement confirming that it would be entitled to a portion of these same profits.
Predictably, both parties took issue with the other’s calculations of the relevant profits. Structured Asset Sales introduced “an expert report, which calculated that the portion of concert ticket revenue attributable to the live performance of TOL [“Thinking Out Loud”] ranged from 13.3%, based on a method of calculating according to the Spotify streaming statistics, to 23.97%, based on calculating according to the RIAA certified sales.”
Meanwhile, defendants including Ed Sheeran “put forward a competing expert report that calculates TOL’s share of the profits by dividing the Adjusted Show Profits (a figure provided by them that subtracts expenses from the total live income) by the number of songs performed by Ed Sheeran, or, in the alternative, by the number of songs performed by Mr. Sheeran and by the opening act(s).”
Given this multifaceted battle over the extent of any potential damages for the alleged infringement, Judge Stanton specified that the associated calculations are best performed by a jury. “In light of the dispute between the parties,” he penned, “the proper calculation of damages should be determined by trial rather than on summary judgment.”
That said, Judge Stanton ruled in Sheeran’s favor by finding that “the jury cannot take into account the revenue from concert merchandise sales when making the damages calculation” – should the alleged infringement be proven at trial, of course.
In April, after emerging victorious in a copyright suit centering on “Shape of You,” Ed Sheeran indicated that “having a culture where unwarranted claims are easily brought” isn’t “constructive or conducive to a culture of creativity.”