In a March 24, 2020 ruling, a federal judge in the Southern District of New York decided that the court will probably bar jurors from listening to Marvin Gaye’s classic recording of “Let’s Get It On” during an ongoing copyright infringement case against Ed Sheeran concerning his song, “Thinking Out Loud.”

 

In their 2016 complaint, Katheryn Townsend and other heirs of Ed Townsend, who co-wrote “Let’s Get It On” with Marvin Gaye, alleged that popular singer-songwriter Ed Sheeran had committed copyright infringement via the musical similarities between Gaye’s song and Sheeran’s 2014 hit.

 

Previously slotted for a September 2020 jury trial, the case became waylaid following a dispute over exactly which version of Gaye’s song jurors could listen to. The heirs argued that the song’s signature embellishments can be inferred from the song’s sheet music, and thus copyright protected, but Sheeran countered that, under this interpretation, their copyright protection would be unfairly expanded beyond the actual sheet music registered with the United States Copyright Office in 1973.

 

In the ruling, U.S. District Judge Louis L. Stanton held that Townsend only has rights to the music contained in simple sheet music deposited with the Copyright Office, referred to as the “deposit copy.” Relying upon the copyright ruling with respect to Led Zeppelin’s “Stairway to Heaven” in the Ninth Circuit from early March 2020, the Judge stated that the deposit copy defines the scope of an author’s copyright. Accordingly, the plaintiffs are limited to comparing “Thinking Out Loud” solely with the musical elements of “Let’s Get It On” reflected in the deposit copy.

 

Marvin Gaye first recorded the now iconic song for commercial release in 1973. While the recording features many musical flourishes such as percussion, bass-guitar, horns, flutes and Gaye’s own vocal performance, none of these embellishments were actually included in the sheet music registered with the Copyright Office. Because they were not contained in the deposit copy, these additional touches that appear in Sheeran’s song in a similar fashion may not form the basis of a copyright infringement claim. Thus, Sheeran may win on a mere “technicality.”

 

This ruling, however, runs afoul of a well-established precedent attorney Francis Malofiy had identified while representing Michael Skidmore in the Led Zeppelin lawsuit; under the 1909 Copyright Act, common law—not the deposit copy—defines the existence and scope of a composition’s copyright. The entirety of an unpublished song is thus entitled to copyright protection from the moment a song is created, not from the moment sparse song notes are registered with the Copyright Office. Therefore, according to Malofiy, the deposit copy is an “inaccurate transcription” of a song’s more robust recording.

 

Furthermore, the final decision as to whether portions of or the actual Gaye sound recording may be played at trial have been deferred until the trial date. At present, however, Judge Stanton believes that the actual recording released to the public would likely be barred by federal rules of evidence under which a court may exclude important information if the risk of misleading the jury exceeds its probative value. In this case, while the actual recording might be relevant to issues such as “access,” Judge Stanton may still keep it out to avoid giving the plaintiffs an unfair advantage.

The Townsend heirs are represented by Keisha D. Rice, Patrick R. Frank and Katherine L. Viker of Frank & Rice PA.

Sheeran is represented by Donald Zakarin, Ilene S. Farkas and Andrew M. Goldsmith of Pryor Cashman LLP.

The case is Griffin et al. v. Sheeran et al., case number 1:17-cv-05221, in the U.S. District Court for the Southern District of New York.